THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

Ex  Libris 

Katharine  F.  Richmond 

and 
Henry  C.  Fall 


»  OS  TOW. 

PHAHLBB  C.  LITTLE  AS" iQ  ..TAMES 
MCCCCILV. 


LIFE 


HON.  JEREMIAH  SMITH,  LL.D. 


MEMBER      OF      CONGRESS      DURING      WASHINGTON'S      ADMINISTRATION, 

JUDGE     OF     THE     UNITED      STATES      CIRCUIT     COUET, 

CHIEF    JUSTICE    OF    NEW    HAMPSHIRE,    ETC. 


BY  JOHN  H.  MORISON 


BOSTON : 

CHARLES  C.   LITTLE   AND   JAMES  BROWN. 

1845. 


Entered  according  to  Act  of  Congress,  in  the  year  1845, 

By  JOHN  H.  MORISON, 
in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


BOSTON: 

PKINTED  BY  FREEMAN  AND  BOLLES, 
WASHINGTON  STREET. 


PREFACE. 


AFTER  Judge  Smith's  death,  in  the  autumn  of 
1842,  his  papers  were  placed  at  my  disposal,  and 
from  them,  chiefly,  this  memoir  has  been  prepared. 
Scarcely  a  document  of  any  kind  has  been  here  in- 
troduced that  was  ever  before  published ;  and  where 
facts,  before  known,  are  stated,  I  have  usually  done 
it  on  the  authority  of  the  original  evidence  to  be 
found  among  Judge  Smith's  papers. 

Many  of  the  letters  here  given  are  from  the  origi- 
nal draughts  which  he  preserved,  and  will  sometimes 
be  found  to  differ  verbally  from  the  copies  that  were 
sent.  He  was  in  the  habit  of  transferring  to '  his 
common-place  book  whatever  particularly  struck  him 
in  his  reading,  accompanying  his  extracts  often  by 
remarks  of  his  own.  It  is  possible  that,  in  two  or 
three  instances,  I  may  have  copied  as  his,  what  he 
had  only  transcribed  from  others. 


1066689 


IV  PREFACE. 

It  can  hardly  be  necessary  to  say  to  the  intelli- 
gent reader,  that  I  am  not  to  be  held  responsible 
for  Judge  Smith's  actions  or  opinions,  but  only  for 
the  accuracy  of  my  statements  in  respect  to  them. 
I  have  endeavored  to  give  a  faithful  transcript  of  his 
mind  and  character,  and  have  knowingly  withheld 
nothing  from  the  fear  of  any  unfavorable  influence  it 
might  have  on  his  reputation.  The  errors  and  fail- 
ings of  distinguished  men  are  not  the  least  instruct- 
ive part  of  their  lives. 

The  preparation  of  this  biography  has  been  to  me 
a  work  of  grateful  affection,  in  which  I  have  been 
cheered  and  aided  by  the  kindness  of  men,  whom 
it  might  savor  of  ostentation  here  to  name;  and  I 
cannot  now  dismiss  it  without  the  hope  and  the 
prayer,  that  it  may  do  something  for  the  cause  of 
public  justice,  of  private  intelligence  and  virtue,  and 
that  the  picture  especially,  which  it  contains,  of  an 
old  age,  happy,  useful,  and  honored,  may  be  not 
without  its  influence  on  others. 

J.  H.  M. 
SALEM,   APRIL  14,   1845. 


Itf 


CONTENTS. 


CHAPTER  I. 

1759  — 1786. 

Page 

Birth  —  Childhood  —  In  School  —  At  College  —  Teacher 
and  Law  Student  at  Barnstable,  Andover,  Salem.         .         1 


CHAPTER  II. 
1786  —  1790. 

At  the  Bar  — Influence  in  the  Town  of  Peterborough  —  In 
the  New  Hampshire  Legislature.  ....  26 

CHAPTER  III. 
1791  —  1795. 

In  Congress  —  First  Impressions  —  Invalid  Pensioners  — 
Hamilton's  Assumption  of  State  Debts  —  Indian  War  — 
Origin  of  two  Parties  —  Madison's  Tariff  —  French  Pol- 
itics—  Democratic  Clubs,  &c.  .  ...  45 


Vi  CONTENTS. 

CHAPTER  IV. 
1795  —  1797. 

In  Congress  —  Jay's  Treaty  —  Fisher  Ames  —  Mr. 
Smith's  Marriage  —  Washington 75 

CHAPTER  V. 

1797  -  1801. 

Fourth  Term  in  Congress — Difficulties  with  France  — 
Settled  in  Exeter  —  United  States  District  Attorney  — 
Interest  in  Politics  —  Judge  of  Probate.  .  .  123 

CHAPTER  VI. 
1801  —  1809. 

Judge  of  the  United  States'  Circuit  Court  —  Chief  Justice 
of  New  Hampshire  —  Influence  and  Character  as  a  Judge 

—  His  Charges  to  the  Grand  Jury.  ...         143 

CHAPTER  VII. 

Judge  Smith's  Political  Feelings  —  Joseph  S.  Buckminster 

—  Fisher  Ames  —  Letters   to  Mrs.  Smith  —  Death  of 

his  Youngest  Son. 212 

CHAPTER  VIII. 

1809  —  1810. 
Governor  of  New  Hampshire.     .....        244 

CHAPTER  IX. 
1810—1820. 

Mr.  Smith  at  the  Bar  —  Judiciary  Act  of  1813  —  Chief 
Justice  —  Judiciary  Act  of  1816 — Mr.  Smith  again  at 
the  Bar.  .  .  .  260 


CONTENTS.  Vil 

CHAPTER  X. 

1820. 

Retires  from  Business  —  Fortune  —  Family  —  Tempera- 
ment—  Occupation  in  Retirement.  .        .      »  v">;-.'        284 

CHAPTER  XI. 

1820  —  1829. 

William    Smith  —  Journey    to   Niagara  —  Mrs.    Smith's 
Death  —  Ariana,  her  Sickness  and  Death.        .         .         307 

CHAPTER  XII. 
1829  —  1830. 

William  Smith — His  Sickness  —  Goes  to  Mississippi  — 
His  Death 348 

CHAPTER   XIII. 
1830—1834. 

Judge    Smith's   Studies  —  Lectures    on    the    Pursuit    of 
Knowledge  —  Second  Maniage  —  Sayings  and  Letters.    365 

CHAPTER  XIV. 

1834  —  1835. 

Lectures    on   Washington,    Franklin,  Judge   Parsons  — 
New  England  Jurisprudence.  ....         407 

CHAPTER  XV. 

1835  —  1838. 

Journey  to  the  South  and  West  —  Letters  —  Orphan  Child 
—  Intercourse  with  Children  —  Wit.         .  431 


Vlll  CONTENTS. 

CHAPTER  XVI. 

1838  —  1839. 

Judge  Smith's  Old  Age  —  Youthfulness  of  Feeling  —  Ha- 
bit of  Comparing  the  Past  and  Present  —  Interest  in 
New  Books ;  in  the  Young  ;  in  Education  —  Intercourse 
with  Young  Ladies  —  Letter  to  Miss  Ross.  .  .  452 

CHAPTER  XVII. 

Letters  —  Advice  to  Joel  Furber  —  Judge  Smith  sells  his 
place  at  Exeter  —  Resides  in  Dover  —  Religious  Views 
and  Character  —  Last  Acts  —  Sickness  —  Death.  481 


LIFE    OF    JUDGE    SMITH. 


CHAPTER  I. 

1759  —  1786. 

BIRTH  CHILDHOOD  IN     SCHOOL  AT     COLLEGE 

TEACHER    AND     LAW    STUDENT     AT     BARN  STABLE, 

ANDOVER,     SALEM. 

JEREMIAH  SMITH  was  born  in  Peterborough,  New 
Hampshire,  the  29th  of  November,  1759.  An  at- 
tempt had  been  made  to  settle  the  town  as  early  as 
1739,  but  the  inhabitants  were  driven  off  several 
times  by  the  Indians,  and  no  families  were  estab- 
lished there  till  1749.  From  that  time,  though  hav- 
ing to  deal  with  a  rugged  soil  and  all  the  hardships 
of  a  first  settlement,  the  little  colony,  embosomed 
amid  the  mountains,  went  on  increasing  ;  and,  in 
1759,  when  they  petitioned  for  a  charter,  there  were 
from  forty-five  to  fifty  families,  living  mostly  in  log 
houses,  and  having  few  of  what  are  now  considered 
the  essentials  of  life. 
1 


2  LIFE    OF    JUDGE    SMITH. 

Jeremiah  was  the  fifth  of  seven  sons.  His  father, 
William  Smith,  who,  like  the  rest  of  the  colonists, 
had  immigrated  from  the  north  of  Ireland,  was,  on 
the  paternal  side,  Scotch,  and  on  the  maternal,  of 
English  descent.  This  will  account  for  his  being  the 
only  man  in  the  town,  at  that  time,  who  did  not 
speak  a  broad  Scotch  dialect.  He  was  modest,  gen- 
tle, discreet,  and  devout.  No  man  in  the  infant 
settlement  was  more  respected  for  the  substantial 
qualities  of  mind  and  character.  He  was  a  justice 
of  the  peace,  and,  in  1774,  a  member  of  the  Provin- 
cial Congress.  He  wrote  a  good  hand,  and  after  he 
was  an  old  man  took  pleasure  in  referring  to  a  com- 
pliment he  had  received  when  a  boy,  from  his  school- 
master in  Ireland,  who  wrote  in  his  copy-book, 

"  William  Smith,  of  Moneymar, 
Beats  his  master  far  and  awar ; 
I  mean  in  writing, 
Not  inditing." 

On  the  31st  of  December,  1751,  "  the  coldest 
day  he  ever  knew,"  he  married  Elizabeth,  daughter 
of  John  and  Margaret  Morison.  She  was  a  woman 
of  energy  and  spirit,  and,  like  many  such  women, 
"  kept  the  scold  a-going," '  as  I  was  told  by  an  old 
man,  who  remembers  her  as  she  was  more  than 
eighty  years  ago.  She  had  ten  children  in  twelve 
years,  but  found  time  to  engage  both  in  the  in-door 
and  out-door  work.  She  assisted  in  harvesting  the 

1  That  the  scolding  was  not  so  incessant  as  some  that  prevailed  in 
the  neighborhood,  may  be  inferred  from  the  answer  of  Judge  Smith's 
elder  brother  to  Mr.  Miller.  "  Johnny,"  said  Mr.  Miller,  "  does  your 
mother  scold  ?  "  "  Yes,"  said  Johnny,  "  sometimes."  "  That 's  not 
always  ;  my  wife  scolds  etarnally." 


LIFE    OF    JUDGE    SMITH.  3 

corn,  and  was  known  to  dig  sixteen  bushels  of  pota- 
toes in  a  day.  She  was  an  excellent  manager  of  her 
household  affairs.  The  question,  what  they  were  to 
have  to  eat,  was  never  allowed  to  be  asked  by  the 
children ;  and  they  went  through  life,  like  Dr.  Frank- 
lin, who  had  been  brought  up  under  a  similar  regu- 
lation, with  great  indifference  to  such  things.  One 
of  the  sons,  however,  who  was  afterwards  a  member 
of  congress,  once  wished  that  he  "  was  a  king ;  for 
then  he  would  have  as  much  barley  broth  as  he 
wanted  to  eat."  One  of  the  daughters  once  came 
home  crying,  and  told  her  mother  that  the  little  girls 
whom  she  had  been  visiting  laughed  at  her,  because 
she  had  not  on  a  jerkin.  "  Never  mind,"  said  her 
mother,  "  ye'll  hae  jerkins  when  they  hae  nane." 
The  prophecy  was  a  true  one.  The  two  silk  gowns 
that  Mrs.  Smith  had  before  she  was  married,  were 
the  only  ones  she  ever  owned,  and  are  now  in  the 
possession  of  her  grandchildren.  She  never  wore 
them,  even  to  meeting,  except  on  sacrament  days 
and  when  her  children  were  to  be  baptized.  Her 
linen  aprons,  the  only  article  of  finery  worn  by  her- 
self or  daughters,  were  washed  and  plaited  once  a 
year.  They  were  carried  in  the  hand,  put  on  as 
they  were  entering  the  meeting-house,  and  folded  up 
"  in  the  last  singing."  There  was  one  handsome 
baby's  dress,  which  went  down  successively  to  all  ten 
of  the  children. 

Mrs.  Smith  was  a  good  singer  of  Scotch  songs  ; 
her  own  children,  as  well  as  those  of  the  neighbors, 
were  always  glad  to  leave  their  noisy  sports,  and 
crowd  round  her  to  hear  her  sing.  Her  notions  of 


4  LIFE    OF    JUDGE    SMITH. 

home  discipline  were  not  of  the  most  indulgent  kind. 
It  is  said  that  once,  on  returning  from  her  brother-in- 
law's,  she  said  to  her  husband,  "  I  've  been  to  Samooel 
Moore's,  and  there's  family  government,  so  there  is  ; 
and  if  you  was  worth  your  ears,  you  'd  keep  your 
boys  at  home."  Her  husband,  having  calmly  heard 
her  through,  asked  if  she  remembered  the  calf  they 
kept  tied  in  the  barn  so  long.  "  Ay,  ay."  "  And 
do  you  mind  that  when  we  let  it  out,  it  run  till  it 
broke  its  leg  ?  "  It  is  said  that  on  some  unusual  oc- 
casion, a  husking,  perhaps,  or  log-rolling,  a  neigh- 
bor's punch-bowl  had  been  borrowed.  Jerry,  as  he 
was  always  called,  playing  about  the  room,  upset  a 
shelf.  In  the  confusion  that  ensued,  his  mother,  of 
course,  attended  to  her  maternal  duties  first,  and  gave 
the  boy  a  smart  whipping.  But  on  going  back,  and 
rinding,  to  her  consternation,  that  neighbor  Miller's 
punch-bowl  had  been  broken,  she  concluded  that  the 
punishment  had  not  been  at  all  proportioned  to  the 
offence,  and,  seizing  the  child,  whipped  him  severely 
a  second  time.  She  was,  however,  a  woman  of  sound 
sense  and  kind  feelings;  and,  notwithstanding  the 
punch-bowl,  was  generally  much  more  indulgent  to- 
wards her  children  in  practice  than  in  theory.  Jere- 
miah could  remember  but  two  or  three  whippings 
that  had  fallen  to  his  share. 

A  story,  with  which  Judge  Smith  used  to  amuse 
the  infancy  of  the  son  of  his  old  age,  may  be  given 
here  as  it  is  told  by  his  son.  "  When  Jeremiah  was 
about  three  years  old,  he  and  his  two  elder  brothers, 
William  and  James,  playing  about  the  well,  fourteen 
feet  deep,  were  reaching  over  to  see  which  could 


LIFE    OF    JUDGE    SMITH.  5 

reach  the  farthest  stone.  Jeremiah,  in  his  zeal  to  go 
beyond  the  others,  reached  so  far  as  to  lose  his  bal- 
ance, and  fall  in.  James  and  William  rushed  into 
the  house,  and  waked  their  mother,  who  was  lying 
down,  and  the  only  person  in  it,  with  the  sound  of 
'  Jerry 's  in  the  well,  Jerry  's  in  the  well ! '  She  hast- 
ened to  the  well ;  but  said,  "  he  is  not  here,  I  see  no- 
thing of  him."  Presently  a  circle  appeared  in  the 
water,  and  a  little  white  head  rose  to  the  surface. 
Her  screams  attracted  the  attention  of  Mr.  Miller, 
who  was  hoeing  in  a  neighboring  field,  and  who, 
with  the  reckless  courage  of  an  insane  man,  (which 
he  was  at  intervals,)  went  directly  down  into  the  well, 
and,  as  the  little  white  head  rose  again  for  the  last 
time  to  the  surface,  seized  it  by  the  hair  and  shouted 
'  Let  down  the  bucket.'  The  little  boy  was  put  into 
it,  drawn  safely  up,  and,  after  being  rolled  on  the 
grass,  was  soon  perfectly  restored."  Jeremiah  had 
two  other  escapes  from  drowning,  almost  as  narrow 
as  this. 

By  spinning  and  weaving  linen,  Mrs.  Smith  did 
her  full  share  towards  supporting  the  family.  Once, 
after  Jeremiah  had  got  a  little  book  knowledge,  he 
undertook  to  comment  on  his  mother's  language,  as 
ungrammatical.  "But  wha  taught  you  langage?" 
she  replied.  "  It  was  my  wheel ;  and  when  ye  '11  hae 
spun  as  many  lang  threeds  to  teach  me  grammar  as  I 
hae  to  teach  you,  I'll  talk  better  grammar." 

Mrs.  Smith  was  a  strict  Presbyterian  in  her  faith, 

and  in  truth  a  devout  woman.     A  niece  of  hers,  a 

young  orphan  girl,  who  lived  in  her  house,  had  been 

guilty  of  some  great  offence,  and  there  was  a  gather- 

l* 


6  LIFE    OF    JUDGE    SMITH. 

ing  of  the  connections  to  consider  what  should  be 
done.  A  sister  of  Mrs.  Smith,  who  was  looked  upon 
as  one  of  the  elect,  proposed  to  "  gar  her  into  the 
barn  to  pray  ;  "  as  if  the  poor,  half-witted,  friendless 
thing  were  not  fit  even  to  be  prayed  with,  except 
among  the  cattle.  Mrs.  Smith  indignantly  rejected 
the  proposal ;  but  it  had  made  on  the  minds  of  her 
children  an  impression  as  lasting,  as  it  was  unfa- 
vorable to  everything  like  a  proud  and  sanctimo- 
nious faith. 

Among  those  who  visited  much  at  the  house,  and 
whose  influence  undoubtedly  continued  through  life 
with  his  nephews,  was  Mrs.  Smith's  brother,  Moses 
Morison.  He  was  the  wit  of  the  town,  and  had  a 
rare  faculty  of  entertaining  the  young  by  his  extem- 
pore romances.  Many  anecdotes  of  him  are  handed 
down,  full  of  the  peculiar  humor  for  which  the 
Smiths  were  afterwards  distinguished.  He  had  been 
building  a  mill,  in  a  neighboring  town,  for  a  man 
named  Patterson,  and  on  his  return  home  was  asked 
if  Patterson  had  a  good  mill-seat.  "  Ay,  very  good." 
"  And  has  he  plenty  of  water  ?  "  "  Ay,  plenty  ;  but 
he  maun  cart  it  foure  miles."  Once  he  was  building 
the  trough  in  a  cider-mill  for  Mr.  Smith,  who  had 
saved  for  the  purpose  some  particularly  nice  plank, 
which  he  did  not  like  to  waste  by  cutting  them  off  at 
the  proper  length.  His  sons  remonstrated  against  hav- 
ing the  trough  so  long.  But  he  appealed  to  uncle 
Mosey,  if  it  could  not  be  made  the  full  length  of  the 
plank.  "  Ay,"  was  the  reply  ;  and  the  father  looked 
with  a  sort  of  triumph  towards  the  boys  —  "  ay,  but 
the  mare  maun  aye  jump  the  trough."  It  was  he 


LIFE    OF    JUDGE    SMITH.  7 

who  thus  described  his  neighbor  Deacon  Duncan's 
skill  in  hewing.  "  As  I  was  ganging,"  said  he, 
"  through  the  woods,  I  heard  a  desprite  crackling, 
and  there  I  found  a  stick  of  timber  that  Deacon 
Duncan  had  hewn,  sae  crooked  that  it  could  nae  lie 
still,  but  was  thrashing  aboot  amang  the  trees.  I 
tauld  him  he  maun  gang  and  chain  it  doon,  or  it 
wad  girdle  the  hale  forest."  "  Deacon  Moore,"  he 
said,  "  made  a  ladder,  and  it  was  sae  twisting,  that 
before  he  got  half  way  to  the  top,  he  found  himself 
on  the  under  side,  looking  up."  These  stories  would 
be  too  trifling  to  tell  in  a  serious  biography,  were  it 
not  for  their  influence  on  the  young.  No  one  can 
understand,  in  some  of  its  most  important  particulars, 
the  character  of  Jeremiah  Smith,  without  becoming 
acquainted  with  the  peculiar  wit  and  pleasantry  of 
the  race  to  which  he  belonged. 

They  were  a  serious  and  devout  people.  No- 
where, among  the  first  settlers  of  New  England, 
every  part  of  which  was  sought  for  a  religious  pur- 
pose,1 were  the  ordinances  of  religion  more  solemnly 
regarded,  or  its  truths  more  reverently  received. 
And  yet  there  was  a  love  of  merriment  and  wit 
mingling  strangely  with  the  most  serious  concerns. 
Judge  Smith  used  to  say,  that  they  went  to  meeting 
on  Sunday,  practised  all  that  was  good  in  the  sermon 
through  the  week,  and  laughed  at  all  that  was  ridi- 
culous. They  were  a  Scotch  race,  who  had  been 
for  two  or  three  generations  in  Ireland,  and  they 
bore  the  marks  of  their  double  origin.  There  was  a 

1  It  has  been  said  of  the  settlers  at  Strawberry  Bank,  (Portsmouth,) 
that  they  professed  to  have  come  not  to  serve  God,  but  to  catch  fish. 


8  LIFE    OF    JUDGE    SMITH. 

grotesque  humor,  and  yet  a  seriousness  and  pathos, 
about  them,  which  in  its  way  has  never  been  ex- 
celled. It  was  the  sternness  of  the  Scotch  cove- 
nanter, softened  by  a  century's  residence  abroad  amid 
persecution  and  trial,  wedded  there  to  the  pathos  and 
comic  humor  of  the  Irish,  and  then  grown  wild  in  the 
woods  among  our  New  England  mountains. 

An  uncle  of  Jeremiah  Smith's,  who  had  been  an 
intemperate  man,  was  found  dead  on  the  road,  and 
an  inquest  was  held,  to  decide  upon  the  cause  and 
manner  of  his  death.  All  the  relations  were  assem- 
bled, and,  of  course,  in  the  most  solemn  state  of  feel- 
ing. But  the  coroner  made  some  ridiculous  blunders 
in  reading ;  the  young  could  hardly  keep  their  coun- 
tenances, and  soon  a  sense  of  the  ludicrous  had  so 
prevailed,  that  the  whole  assembly,  even  the  sisters  of 
the  unfortunate  man,  were  overcome  by  it. 

Among  Judge  Smith's  early  recollections  was  the 
funeral  of  his  grandmother,  which  took  place  at  his 
father's,  when  he  was  ten  years  old.  It  was  the 
custom,  borrowed,  I  suppose,  from  the  Irish  wakes, 
for  the  friends  and  neighbors  to  sit  up  all  night  with 
the  dead,  reading  appropriate  passages  from  the 
Scriptures,  engaging,  part  of  the  time,  in  prayer, 
and  telling  stories  of  witches,  and  demons,  and 
ghostly  apparitions,  and  of  the  death- warn  ings  which 
had  been  so  often  given.  But  the  night  was  not  all 
taken  up  with  these  things  ;  there  was  eating  and 
drinking,  and  shouts  often  of  laughter,  before  the 
morning.  So  wild  a  mingling  of  revelry  and  grief 
and  superstitious  terrors,  connected  as  they  were 
with  the  uninhabited  state  of  the  country,  made  an 


LIFE    OF    JUDGE    SMITH.  9 

impression  on  the  boy  which  followed  him  through 
life. 

Whatever  his  reason  might  have  taught,  I  do  not 
think  that  he,  any  more  than  Sir  Walter  Scott,  ever 
freed  himself  entirely  from  a  sort  of  vague  feeling, 
in  respect  to  supernatural  influences.  He  used  to 
refer  to  stories  connected  with  a  particular  place, 
that  was  thought  to  be  haunted,  where  horses  were 
often  stopped,  without  apparent  cause,  and  oxen 
could  not  draw  even  a  light  load  without  great  effort. 
One  illusion,  of  a  similar  kind,  occurred  in  his  own 
experience,  which  I  do  not  think  he  was  ever  able  to 
throw  entirely  off  as  only  an  illusion,  however  his 
judgment  may  have  been  convinced  that  it  was  so. 
As  he  was  walking,  when  quite  young,  through  a 
large  open  field,  he  perceived  a  man  approaching 
him  from  behind.  He  slackened  his  pace,  and, 
looking  back  again,  saw  him,  as  he  thought,  still 
nearer.  A  minute  after,  when  he  supposed  that  he 
must  have  overtaken  him,  he  turned  round  to  speak 
to  him,  but  there  was  no  man  there.  It  is  hardly 
worth  the  while  to  say,  that  he  was  probably  lost  in 
his  own  thoughts,  and,  some  impression  being  made 
on  his  eyes,  he,  without  examining,  took  it  to  be  a 
man,  and,  still  intent  on  what  was  occupying  his  mind, 
carried  on  the  illusion,  till,  when  turning  to  speak,  he 
came  to  himself,  and  the  vision  was  gone.  He  was, 
of  course,  startled,  and,  in  his  childish  imagination, 
coupling  it  with  the  stories  he  had  heard  of  super- 
natural apparitions,  it  is  not  wonderful  that  he 
should  have  been  strongly  impressed  by  it.  For  if 
any  circumstances  could  tend  to  fix  such  things  in 


10  LIFE    OF   JUDGE    SMITH. 

the  mind,  it  was  precisely  those  under  which  he  was 
placed  ;  —  among  a  people  who,  without  exception, 
most  religiously  believed  in  them  ;  amid  a  wilder- 
ness yet  unexplored,  except  by  the  Indians  and  a 
few  daring  adventurers  ;  in  the  midst  of  what  were 
then  savage  mountains  ;  left  much  of  the  time  alone 
with  the  mysteries  of  nature,  on  which,  to  his  mind, 
none  of  the  light  of  modern  science  had  yet  been 
thrown.  It  is  curious,  and  not  without  a  philosophi- 
cal interest,  to  trace  to  its  source,  and  then  follow 
out  through  the  subsequent  history  of  a  strong  and 
cultivated  mind,  the  effect  of  such  impressions. 

Another  thing,  which  had  no  small  influence  on 
the  character  of  the  boy,  was  the  account  given  by 
his  relatives  of  the  state  of  things  in  Ireland,  and  par- 
ticularly of  the  wars  in  which  they  had  been  engaged. 
Many  and  terrible  stories  connected  with  the  great 
massacre  of  Irish  Protestants  by  their  Popish  neigh- 
bors had  been  handed  down  from  father  to  son,  losing 
nothing  of  their  circumstantial  horrors  in  the  descent. 
He  never  forgot  the  impressive  manner  in  which  his 
grandfather,  John  Morison,1  recounted  the  dreadful 


1  John  Morison,  the  son  of  Samuel  Morison,  had  come  from  Ireland 
with  his  father  and  family  in  August,  1718.  They  arrived  late  in  the 
autumn  at  Casco  Bay,  where  they  were  frozen  in  for  the  winter.  It  is 
said  that  on  first  lauding  upon  that  cold  and  cheerless  coast,  the  wintry 
ocean  behind  them,  and  naked  forests  before,  after  a  solemn  act  of 
prayer,  they  united  in  singing  that  most  touching  of  all  songs:  —  "  By 
the  rivers  of  Babylon,  there  we  sat  down,  yea,  we  wept,  when  we  re- 
membered Zion ;  "  and  with  peculiar  feelings,  as  they  surveyed  the  waste 
around  them,  and  remembered  the  pleasant  homes  which  they  had  left, 
might  they  add,  "  How  shall  we  sing  the  Lord's  song  in  a  strange 
land  ?  "  They  left  Casco  Bay  early  in  the  spring,  and  began  their  set- 
tlement in  Londonderry,  April  llth,  O.  S.  1719.  From  his  wife,  Mar- 
garet Wallace,  who  is  supposed  to  have  been  of  the  race  of  Sir  Wil- 


LIFE     OF     JUDGE     SMITH.  11 

sufferings  which  he,  then  a  boy,  endured  at  the  siege 
of  Londonderry.  He  used  to  tell  of  watching  for 
hours  at  a  mouse-hole,  in  the  hope  of  catching  a 
mouse  for  food  ;  and  he  most  eloquently  described 
the  intense  anxiety  they  felt  in  the  city,  when,  after 
nearly  two- thirds  of  their  number  had  died  of  hun- 
ger, they  saw  a  frigate  coming  to  their  relief ;  the 
sinking  of  the  heart,  when  twice  she  had  vainly  tried 
to  break  the  boom,  which  had  been  thrown  across  the 
river ;  and  then  the  violent  change  from  despair  to 
the  frenzied  bewilderment  of  joy,  when,  at  the  third 
attempt,  she  finally  succeeded,  and  came  up  bringing 
food  to  the  starving  inhabitants.  This  same  old  man 
had  been  also  at  the  battle  of  the  Boyne,  July  1,  1690, 
and  saw  the  Count  Schomberg  when  he  fell.  It  is 
difficult  for  those  born  in  cities  to  understand  the 
intense  interest  excited  among  children  in  the  coun- 
try, and  especially  at  that  period,  by  incidents  like 
these,  related  by  one  who  had  been  personally  en- 
gaged in  them  more  than  three  quarters  of  a  century 
before. 

It  was  a  rude  state  of  society  in  which  the  boy's 
lot  was  cast,  and  though  all  his  brothers,  except  one 
who  died  early,  were  afterwards  distinguished  for 
their  intellectual  powers,  there  was  not,  if  we  may 
trust  one  who  knew  them  fourscore  years  ago,  a 


liam  Wallace,  all  the  wit  and  smartness  of  the  family  were  thought 
to  have  been  inherited.  It  is  related  of  her  that  when  her  husband,  was 
building  his  first  habitation  in  Londonderry,  she  came  to  him  and  in  a 
manner  unusually  affectionate,  said,  "  A  weel,  aweel,  dear  Joan,  an  it 
maun  be  a  log  house,  do  make  it  a  log  heegher  nor  the  lave,"  (higher 
than  the  rest.)  On  her  death-bed,  being  asked  what  she  would  have, 
she  replied,  "  Nothing  but  Christ."  These  were  her  last  words. 


12  LIFE     OF     JUDGE     SMITH. 

more  uncouth,  impudent,  hungry-looking  set  of  lads 
in  the  town  of  Peterborough.  Jeremiah  was  indeed  a 
diffident  boy.  The  rest  were  great  workers,  and  put 
to  work  almost  as  soon  as  they  could  walk.  They 
were  ready  for  all  kinds  of  rough,  practical  jokes,  and 
it  was  not  an  easy  thing  to  provide  food  for  seven 
such  boys.  To  this  day,  in  their  native  town,  it  is 
told  as  a  cause  of  their  being  afterwards  so  sharp- 
witted,  that  on  returning  one  night  from  some  frolic, 
they  in  the  dark  seized  upon  and  devoured  what  they 
thought  a  dry  cod-fish ;  but  the  next  day  their  mo- 
ther, wishing  to  make  a  cheese,  was  in  great  distress 
because  she  could  nowhere  find  her  rennet. 

Under  circumstances  apparently  so  unfavorable, 
there  was,  in  Jeremiah's  mind  from  his  earliest  years, 
an  intense  desire  for  knowledge.  "  I  well  remem- 
ber," he  said  seventy  years  afterwards,  "  my  longings 
at  that  time."  He  taught  himself  to  write  a  good 
hand,  partly  by  imitating  his  father's  hand  on  pieces 
of  birch-bark,  with  ink  made  from  vegetables.  When 
quite  a  boy,  he  was  employed  by  people  to  write  let- 
ters for  them,  not  excepting  love-letters,  for  which, 
he  said,  he  had  no  other  model  than  the  Songs  of 
Solomon.  Peterborough,  for  some  time  after  its  set- 
tlement, had  no  enclosed  pastures,  and  the  little  Jere- 
miah was  employed  in  herding  the  cattle.  He  used 
to  recur  to  the  pleasure  he  enjoyed  at  such  times  in 
building  stone  houses.  In  these  solitudes  were  pro- 
bably begun  the  habits  of  thought  and  meditation, 
which  he  always  retained.  No  man  could  be  more 
fond  of  society  than  he  was  in  after  life,  but  he  loved 
also  to  be  alone,  and  not  a  great  while  before  his 


LIFE     OF     JUDGE     SMITH.  13 

death,  he  said,  "I  conscientiously  think  I  have  en- 
joyed more  in  a  lonely  ride  than  in  the  company  I 
loved  the  most."  These  circumstances,  unpropitious 
as  they  might  seem,  were  really  favorable  to  his  intel- 
lectual development.  "  Your  education  of  events," 
he  said  to  a  friend,  "  has  been  the  best  part  of  your 
education.  I  think  little  of  what  teachers  can  do." 
He  drew  this  opinion  undoubtedly  from  his  own  early 
experience. 

He  would  walk  sometimes  four  or  five  miles  to  a 
place  where  he  had  heard  there  was  a  book,  and 
reading  it  upon  the  road,  he  often  devoured  its  con- 
tents before  reaching  home.  When  a  little  boy,  he 
fell  in  with  the  Arabian  Nights,  which  he  read  with 
delight.  But  the  Bible  was  the  book,  which,  above 
all  others,  interested  and  instructed  him  from  his  ear- 
liest days,  and  for  which,  not  less  on  account  of  its 
literary  merits  than  as  the  great  repository  of  divine 
truth,  his  admiration  never  abated.  He  read  it  again 
and  again,  and  committed  large  portions  of  it  to  me- 
mory. The  Old  Testament  especially  was  a  never- 
failing  resource.  His  knowledge  of  the  scriptures 
was  indeed,  as  he  thought,  the  cause  of  his  being 
selected  for  a  public  education.  His  father  was  one 
of  the  deacons  of  the  church,  and  his  house  a  place 
of  resort  for  the  neighboring  ministers.  Sometimes, 
after  the  chapter  had  been  read,  at  family  prayers, 
the  father  would  say,  "  This  little  boy  can  repeat  that 
chapter."  Whereupon  Jerry  was  called  up  and 
would  recite  ;  "  For  Zion's  sake  will  I  not  hold  my 
peace,  and  for  Jerusalem's  sake  I  will  not  rest,  until 
the  righteousness  thereof  go  forth  as  brightness,  and 
2 


14  LIFE     OF     JUDGE     SMITH. 

the  salvation  thereof  as  a  lamp  that  burneth."  After 
the  boy  had  repeated  this  or  whatever  chapter  it 
might  be,  the  minister  would  pat  him  on  the  head 
and  say,  "  This  boy,  'squire,  must  be  a  minister.  You 
must  bring  him  up  to  college."  Thus  by  degrees  it 
came  to  be  understood  in  the  family  that  he  was  to 
go  to  college  ;  an  advantage  he  thought  he  owed  to 
his  ready  memory.1 

He  began  to  study  Latin,  when  about  twelve  years 
old,  with  Rudolphus  Greene,  an  Irishman  employed 
by  the  town  to  keep  school  a  quarter  of  the  year  in 
each  of  the  four  quarters  of  the  town.  While  he 
was  hearing  a  boy  recite  he  usually  held  a  stick  in 
his  hand,  on  which  he  cut  a  notch  for  every  mistake, 
and,  after  the  recitation  was  ended,  another  stick  was 
employed  to  give  a  blow  for  every  notch  that  had 
been  cut.  Jeremiah,  who  seldom  had  a  notch  against 
him,  followed  him  round  in  his  circuit,  and  is  de- 
scribed as  a  bashful,  awkward  boy,  who  might  be 
seen  on  his  way  to  and  from  school,  with  an  open 
book  in  his  hand,  and  taking  no  notice  of  anything 
else.  According  to  his  own  account,  the  instructions 
he  received  in  Latin  were  wretched  enough.  When, 
longing  to  be  enlightened  on  some  dark  passage  in 
his  lesson,  he  went  to  his  teacher  with  his  heart  as 
full  as  if  the  whole  world  depended  upon  it,  he  often 
came  away  with  tears  of  disappointment  from  the 

1  Judge  Smith  always  disclaimed  being  a  man  of  genius.  His  me- 
mory, which  was  indeed  wonderfully  quick,  retentive  and  exact,  he 
thought  his  most  remarkable  endowment  next  to  his  love  of  labor.  If 
Quinctilian's  remark,  "  quantum  memorise,  tantum  ingenii,"  were  true 
(which  it  is  not)  he  might  certainly  claim  to  be  a  genius  of  a  very  high 
order. 


LIFE     OF     JUDGE     SMITH.  15 

blundering  explanations  that  were  given.  At  the 
meeting-house,  where  the  school  was  kept  a  part  of 
the  time,  the  only  seats  and  desks  they  had  were 
made  of  rough  boards  placed  on  blocks  of  wood.  If 
such  was  the  meeting-house,  what  must  have  been 
the  common  school  houses  ?  Bad  as  the  school  was, 
his  attendance  was  often  interrupted  by  the  labors 
that  were  required  upon  the  farm,  and  his  studies 
must  have  been  entirely  suspended  more  than  three 
quarters  of  the  time  after  he  commenced  Latin  till  he 
entered  college.  He  used  to  boast  that  when  twelve 
years  old  he  could  reap  as  much  in  a  day  as  a  man. 

Through  the  town,  however,  he  was  singled  out  as 
one  who  was  yet  to  be  distinguished.  Late  in  life  he 
once  said  of  a  boy,  "  I  don't  like  to  see  him  bear 
punishment  so  well ;  it  seems  so  naturally  fitted  for 
him,  and  he  for  it."  It  was  by  the  converse  of  this 
reasoning,  that  old  Mrs.  Cunningham,  who  lived  near 
his  father's,  formed  her  opinion  of  him.  "  I  knew," 
she  used  to  boast,  after  the  prophecy  had  been  fulfil- 
led, "  that  Jeremy  Smith  would  make  a  great  man, 
always  after  I  foond  him  on  my  ploomb  tree,  stealing 
ploombs  —  he  lukked  sae  shamed."  A  quick  ingen- 
uousness of  shame  in  a  boy  has  been,  from  the  time 
of  Quinctilian,  no  mean  sign  of  distinction  ;  but  in 
the  present  case,  an  uncontrollable  desire  for  know- 
ledge, and  a  readiness  to  pay,  in  laborious  days  and 
nights,  whatever  price  might  be  required,  afforded  a 
surer  presage  of  future  greatness. 

He  lived  among  men  who  made  great  account  of 
theological  discussions,  and  who,  with  rough,  strong 
sense,  and  an  extensive  knowledge  of  scripture  texts, 


16  LIFE    OF    JUDGE    SMITH. 

delighted  to  enter  on  such  disputes.  While  working 
with  his  elders,  he  was  sometimes  persuaded  so  far  to 
overcome  his  diffidence,  as  to  "  let  off  a  speech." 
Once,  after  a  regular  forensic  disputation  between  him 
and  a  colored  man,  who  was  owned  as  a  slave  by  his 
uncle,  Deacon  Moore,  the  audience  decided,  that, 
though  Baker  made  the  most  noise,  Jerry  showed 
the  most  sense  and  the  soundest  doctrine. 

Matters  went  on  thus  for  several  years,  when  he 
was  sent  for  a  short  time  to  New  Boston,  to  be  under 
the  instruction  of  an  Irishman,  named  Donovan. 
After  this  he  went  to  Hollis,  where,  under  the  Rev. 
Mr.  Emerson,  he  began  Greek  and  finished  his  pre- 
paration for  college.  This  was  a  golden  period,  and 
he  always  remembered  his  kind  and  intelligent  teacher 
with  affectionate  respect.  He  remembered  only  one 
thing  against  Mr.  Emerson.  Soon  after  going  to 
Hollis,  the  evening  before  Fast  Day,  one  of  his  fellow- 
students  said  to  him  at  tea-time,  "  You  had  better  lay 
in  a  good  stock,  for  you  will  get  nothing  to  eat  to- 
morrow." This  information  sounded  so  strangely, 
that  he  did  not  heed  the  warning,  and,  in  fact,  did 
not  believe  it.  But  in  the  morning  there  were  no 
signs  of  breakfast.  He  went  to  meeting,  came  home 
very  hungry,  and  perhaps  a  little  angry ;  but  how 
must  his  irritation  have  been  increased,  when, 
through  the  half-open  door  of  the  best  room,  he 
saw  his  reverend  teacher  devouring  drop-cakes  and 
custards  !  It  was  in  Hollis  that  he  first  became  ac- 
quainted with  Noah  Worcester,  the  apostle  of  peace, 
who  was  not  more  remarkable  for  the  clearness  of  his 
mind  and  his  simplicity  and  purity  of  character,  than 


LIFE    OF    JUDGE     SMITH.  ]7 

for  the  struggles  through  which  he  passed  in  early 
life,  under  circumstances  which  seemed  the  most  ad- 
verse to  gaining  an  accomplished  education. 

It  was  about  this  time  that  Jeremiah  first  under- 
took the  office  of  a  teacher  in  a  remote  corner  of  his 
native  town.  The  fashion  was  for  the  master  to  board 
round  from  house  to  house,  with  the  parents  of  the 
children.  Once,  he  used  to  say,  while  he  was  sitting 
at  table,  a  hand  from  behind  pounced  upon  his  plate, 
and  carried  off  all  its  contents.  It  was  the  hand  of 
one  of  the  hungry  children,  and  the  father  of  the 
family  laughed  heartily,  as  if  what  had  been  done 
showed  that  he  might  be  a  promising  boy.1 

In  1777,  Jeremiah  Smith  was  entered  at  Harvard 
College,  and  about  the  same  time  enlisted  for  two 
months  in  the  army.  News  had  just  come  of  Bur- 
goyne's  invasion.  One  afternoon,  a  young  man,2  ap- 
parently about  sixteen,  called  on  Capt.  Stephen  Park- 
er, of  New  Ipswich,  and  offered  to  enlist.  The  cap- 
tain inquired  who  he  was,  and  if  his  father  had  given 


1  One  of  the  most  distinguished  merchants  in  Boston,  Samuel  Apple- 
ton,  Esq.,  was,  a  few  years  later,  engaged  as  a  teacher  in  the  same 
neighborhood,  though  in  an  adjoining  town.     He,  however,  instead  of 
going  round  with  the  scholars,  was  let  out  at  auction,  as  paupers  used  to 
be,  to  board  with  the  lowest  bidder.     He  did  not  much  like  the  place 
where  he  was  to  go,  and  a  kind  woman,  a  Mrs.  Perry,  who  recently 
died  at  the  age  of  ninety -two,  had  compassion  on  him;  and,  for  the  four- 
and-six-pence  or  five  shillings  a  week,  which  her  neighbor  had  thought 
a  reasonable  compensation,  took  him  into  her  family. 

2  This  account  was  kindly  furnished  me  by  the  Hon.  Salma  Hale,  of 
Keene,  N.  H.,  who  had  it  from  Capt.  Parker's  son,  and  who,  on  exam- 
ining public  documents  at  Concord,  found  the  name  of  Jeremiah  Smith 
on  the  roll  of  Capt.  P.'s  company.    Mr.   Hale's  name  is  a  sufficient 
guaranty  for  the  accuracy  of  the  account,  as  far  as  he  had  anything  to 
do  with  it. 

2» 


18  LIFE    OF    JUDGE    SMITH. 

his  consent.  The  lad  replied  that  his  name  was  Jer- 
emiah Smith  ;  that  his  father  lived  in  Peterborough, 
and  that  he  had  come  without  his  knowledge.  Capt. 
Parker  knew  his  father,  and,  persuading  him  to  re- 
main at  his  house  till  morning,  he  went  in  the  night 
to  Peterborough  to  consult  the  father,  who  at  length 
consented  that  his  son  should  be  enlisted.  He  ex- 
acted, however,  from  the  captain  a  promise,  that 
should  his  company  be  ordered  into  battle,  he  would 
not  take  Jeremiah  with  him,  but  despatch  him  on 
some  duty  that  would  be  safe.  Just  before  the  battle 
of  Bennington,  Capt.  Parker  ordered  the  lad  on  some 
particular  duty  that  appeared  to  be  without  danger, 
but  in  the  midst  of  the  fight  saw  him  by  his  side. 
"  Why  did  you  come  here  ?  "  he  said.  "  Oh,  sir," 
he  replied,  "  I  thought  it  my  duty  to  follow  my  cap- 
tain." In  the  battle  a  musket-ball  grazed  his  throat, 
leaving  a  mark  which  remained  for  years,  and  his  gun 
by  another  bullet  was  rendered  useless.  He  threw  it 
away,  and,  seizing  another  that  lay  near  a  dying  sol- 
dier, who  had  fallen  by  his  side,  he,  in  the  language 
of  his  captain,  "  fought  with  it  like  a  young  hero," 
till  the  battle  ended.  In  his  own  account  of  the 
matter  he  claimed  no  credit  for  heroism,  and  said 
that  musket-balls  made  a  sort  of  music  which  he  had 
no  disposition  to  hear  a  second  time.  He  passed  the 
night  after  the  battle  in  assisting  to  guard  the  Hes- 
sian prisoners,  who  were  confined  in  the  Bennington 
meeting-house. 

At  Cambridge  he  was  in  the  class  with  the  Hon. 
John  Davis,  late  judge  of  the  United  States'  district 
court,  who  remembers  him  as  a  good  scholar  and 


LIFE    OF    JUDGE    SMITH.  19 

pleasant  associate.  It  is  a  little  remarkable,  that,  be- 
sides Samuel  Dexter,  who,  as  an  advocate,  was  infe- 
rior to  no  man  of  his  day,  there  should  have  been  in 
the  same  class  three  men,  John  Davis,  Elijah  Paine, 
and  Jeremiah  Smith,  who  were  all  placed  upon  the 
bench  by  the  elder  Adams.  After  remaining  at  Har- 
vard College  two  years,  Mr.  Smith  was  entered  at 
Queen's  (now  Rutgers)  College,  in  New  Jersey.  His 
reason  for  making  the  change  was,  that  he  got  no- 
thing at  Cambridge,  the  college  being  then  in  a  de- 
pressed condition,  and  the  instruction  poor.1  He 
probably  gained  nothing  by  the  change,  except  to  cut 
short  his  course,  and  he  was  graduated  in  1780,  a  year 
sooner  than  he  could  have  been  at  Cambridge.  While 
in  New  Jersey  he  was  in  some  danger  of  ruining  his 
eyes,  by  rising  through  the  winter  at  four  o'clock  to 
study  Greek.  Referring,  fifty  years  afterwards,  to  the 
state  of  the  colleges  at  the  time  he  took  his  degree, 
he  said,  "  I  can  remember  when  they  were  less  at- 
tentive to  the  useful  branches  of  knowledge  than 
now.  You  might  formerly  sometimes  see  a  graduate 
who  could  not  write  a  page  of  good  English,  nor 
spell  well  such  English  as  he  did  write." 

After  leaving  college  he  remained  a  year  or  two  in 
Peterborough.  In  the  autumn  of  1781  he  went  with 
cattle  for  the  army  to  Peekskill,  N.  Y.,  and  there,  for 
the  first  time,  met  Alexander  Hamilton.  At  a  public 
house  he  found  a  number  of  officers,  and,  among 
them,  a  young  man,  who  was  listened  to  with  marked 


1  Perhaps  the  religious  views  at  the  New  Jersey  College  had  some 
influence. 


20  LIFE    OF    JUDGE    SMITH. 

attention  by  men  evidently  his  superiors  in  rank,  and 
greatly  so  in  years.  Hamilton  was  then  but  twenty- 
three  or  twenty-four,  a  circumstance  which  may  well 
excite  our  wonder,  when  we  consider  how  much  he 
had  already  accomplished,  and  how  great  even  then 
was  his  influence  with  Washington  and  the  ablest 
men  of  the  nation.  The  feelings  which  this  inter- 
view awakened  in  Mr.  Smith  were  never  changed, 
and  to  the  close  of  his  life,  after  a  pretty  intimate  ac- 
quaintance with  most  of  the  great  men  of  America, 
who  were  on  the  stage  with  him,  he  always  consid- 
ered Hamilton  as  a  man  of  greater  original  powers, 
and  of  a  more  magnanimous  nature,  than  any  other 
whom  he  had  known. 

I  have  endeavored  to  trace  back  as  minutely  as  I 
could  Mr.  Smith's  history  to  its  early  and  humble 
beginnings.  It  is  much  easier  to  show,  in  general 
terms,  the  bow  of  promise  which  a  great  man's  set- 
ting sun  throws  over  the  obscurity  of  his  youth,  and 
it  may  answer  the  purposes  of  eulogy,  but  not  of  a 
faithful  biography.  The  little,  and  in  themselves, 
unimportant  circumstances,  which  exhibit  peculiar 
traits  of  mind,  or  which  go  to  form  the  future  char- 
acter, are  the  most  instructive  parts  of  a  man's  his- 
tory. 

It  was  during  the  two  years  Mr.  Smith  spent  in 
Peterborough,  that  he  received  from  his  native  town 
the  first  public  mark  of  the  confidence  and  respect, 
which  through  all  his  political  fortunes,  continued 
unshaken,  even  with  those  whose  opinions  were  ad- 
verse to  his.  One  who  had  known  him  intimately 
from  the  time  when  he  was  taken  out  of  the  well  to 


LIFE     OF     JUDGE     SMITH.  21 

the  last  summer  of  his  life,  and  who  had  been  early 
and  intimately  associated  with  him  in  the  business  of 
the  town,  speaks  in  the  strongest  terms  of  his  impor- 
tant services  to  the  town.  They  differed  entirely 
in  their  religious  views,  but  when  some  doubts  were 
expressed  as  to  Mr.  Smith's  Christian  character,  he 
said  with  a  strong  emphasis,  "  I  did  think  him  the 
best-tempered  man  I  ever  knew.  1  can  say,  with  a 
clear  conscience,  that  I  placed  more  confidence  in 
Jerry  Smith  than  in  any  [other]  man  that  I  ever 
knew  in  the  world  ;  for  there  was  no  guile  in  him, 
but  all  fair  integrity."  And  however  they  may  at 
times  have  been  estranged  by  party  conflicts,  those 
who  knew  him  best  from  his  childhood  up,  would,  I 
believe,  unanimously  testify,  as  strongly  as  this  man, 
to  his  good  temper  and  the  purity  of  his  character. 
These  high  qualities  were  recognized  in  him  from  the 
beginning.  The  fact  that  his  own  family,  who  are 
usually  the  best  and  often  the  severest  judges  of 
character,  together  with  all  the  neighbors,  had  set 
him  apart,  from  his  childhood,  for  the  ministry,  shows 
well  enough  the  estimate  which  they  put  upon  him. 
The  love  of  knowledge,  a  high  sense  of  justice  and 
honor,  and  the  desire  to  do  well  whatever  he  under- 
took, whether  on  a  large  or  a  small  scale,  and  a  more 
than  willingness  to  endure  any  amount  of  labor,  were 
then,  as  always,  the  distinguishing  qualities  of  his 
mind.  And  not  more  true  is  it,  that  the  noblest 
rivers  come  down  from  the  loftiest  mountains,  than 
that  the  most  useful  lives  are  always,  though  we  may 
not  see  the  source,  those  which  flow  from  the  highest 
aspirations  and  desires  in  youth. 


22  LIFE     OF     JUDGE     SMITH. 

At  a  town  meeting  in  Peterborough,  January  21, 
1782,  a  committee  of  five  was  appointed  to  examine 
the  plan  of  government  which  hacl  been  proposed  for 
the  state  of  New  Hampshire,  and  at  the  same  meet- 
ing he  was  chosen  to  attend  the  convention  in  Con- 
cord, as  a  member  from  Peterborough.  I  can  find 
in  the  office  of  the  secretary  of  state,  at  Concord,  no 
records  of  this  convention  ;  and  do  not  suppose  that 
the  young  legislator  took  any  active  part  in  this  his 
first  public  employment. 

Having  remained  nearly  two  years  undecided  what 
profession  to  take,  he  at  length  resolved  to  study  law  ; 
and  in  August,  1782,  he  began  the  study  with  Shear- 
jashub  Bourne,  in  Barnstable,  Massachusetts,  being 
at  the  same  time  a  private  teacher  in  the  family  of 
Brigadier  Otis.  His  predecessor  in  both  these  places 
was  his  old  classmate,  John  Davis,  whose  subsequent 
fortune,  in  the  usefulness  of  his  judicial  services  and 
the  honored  serenity  of  his  old  age,  was  not  unlike  his 
own.1  After  remaining  a  year  at  Barnstable,  he  spent 
the  next  year  in  Andover  Academy,  as  assistant  in- 
structor to  "  that  able  and  excellent  scholar,"  (as  he 

1  When  Mr.  Davis  left  the  office  of  comptroller  of  the  United  States 
treasury,  his  place  was  offered  to  Mr.  Smith.  Mr.  Davis  was  appointed 
United  States  district  attorney,  for  Massachusetts,  in  1796,  Mr.  Smith 
for  New  Hampshire,  in  1797,  and  they  were  both  made  judges,  one  of 
the  district,  the  other  of  the  circuit  court  of  the  United  States,  I  believe, 
in  the  same  year.  The  Hon.  Prentiss  Mellen,  late  chief  justice  for  the 
stale  of  Maine,  and  the  Hon.  Jeremiah  Smith,  late  chief  justice  of  New 
Hampshire,  both  read  law  in  Barnstable,  and  the  Hon.  Lemuel  Shaw, 
now  chief  justice  of  the  supreme  court  of  Massachusetts,  was  born 
there.  Judge  George  Thacher,  Col.  James  Otis,  also  a  judge,  and  Judge 
Davis,  father  of  the  solicitor-general,  Daniel  Davis,  were  Barnstable 
men,  and  Judge  Marcus  Morton  was  descended  from  Cape  Cod  ances- 
tors. 


LIFE     OF     JUDGE     SMITH.  23 

called  him,)  Dr.  Pierson.  Here  it  was  his  privilege 
to  number  among  his  pupils,  two  presidents  of  Har- 
vard University,  and  the  late  honored  principal  of 
Phillips  Exeter  Academy  ; '  and  he  always  boasted 
with  an  honest  satisfaction,  of  the  relation  which  they 
had  once  sustained  to  him.  When,  after  Dr.  Abbot 
had  been  fifty  years  connected  with  the  Exeter 
Academy,  his  grateful  pupils,  with  Mr.  Webster  at 
their  head,  held  a  sort  of  festival  in  honor  of  their 
teacher,  Judge  Smith  claimed  for  himself  a  distinc- 
tion, "  which,"  he  said,  "  could  belong  to  no  other 
man  living.  You  were  his  scholars ;  I  his  teacher. 
It  was  little  that  I  had  to  impart ;  but  that  little  was 
most  cheerfully  given.  I  well  remember  the  promise 
he  then  gave ;  and  providence  has  been  kind  in  plac- 
ing him  just  in  that  position  where  his  life  could  be 
most  usefully  and  most  honorably  spent." 

In  1784,  he  took  the  charge  of  a  small  school  of 
young  ladies  in  Salem,  at  the  same  time  reading  law 
under  the  direction  of  William  Pynchon.  This  he 
looked  back  upon  as  one  of  the  happiest  portions  of 
his  life.  At  Salem,  he  was  brought  into  a  larger  cir- 
cle of  refined  and  educated  people  than  he  had  be- 
fore met ;  and  he  is  still  remembered,  by  some  who 
knew  him  there,  as  an  amiable,  agreeable,  intelligent 
young  man,  and  a  great  favorite  in  society.  -  He  en- 
tered earnestly  into  plans  for  the  improvement  of  his 
pupils,  and,  much  as  he  admired  and  always  professed 
to  admire  personal  beauty,  he  endeavored  earnestly 

1  John  Thornton  Kirkland,  Josiah  Quincy  and  Benjamin  Abbot.  "  I 
sometimes,"  he  said,  "  feel  almost  giddy  when  I  think  of  the  great  men 
who  have  been  under  my  charge." 


24  LIFE     OF     JUDGE     SMITH. 

to  impress  them  with  a  sense  of  the  superior  value  of 
that  higher  and  more  lasting  beauty,  which  belongs  to 
the  mind  and  character.  He  was  greatly  pleased 
with  the  turn  which  a  young  lady  gave  to  some 
complimentary  remarks  that  he  was  making  to  her, 
and  wished  that  all  ladies  would  make  as  good  a 
use  of  flattery.  "  1  know,"  she  replied,  "  that  I  do 
not  possess  those  qualities  ;  but  since  you  ascribe 
them  to  me,  I  take  it  for  granted  that  you  wish  me 
to  have  them,  and  will  therefore  try  to  make  your 
words  true."  Of  that  period  he  might  have  said,  as 
Lord  Eldon  said  of  the  corresponding  period  in  his 
life  :  "  Oh,  those  were  happy  times,  we  were  always 
in  love  then." 

He  became  particularly  interested,  while  at  Salem, 
in  a  young  lady  of  great  beauty  and  loveliness,  with 
whom  he  corresponded  for  several  years.  The  let- 
ters still  remain,  and  though  written  after  the  fashion 
of  the  day,  bear  marks  of  a  deep  and  tender  attach- 
ment on  both  sides.  But  his  circumstances  were  not 
such  as  to  warrant  an  engagement  or  to  commend 
him  to  her  friends,  and  she  was  reserved  for  a  more 
splendid  fortune  but  an  early  grave. 

Mr.  Smith  was  remarkably  communicative,  and 
used  always  to  say  that  he  had  no  secrets  of  his  own  ; 
but  an  incident,  which  occurred  while  he  was  in  Sa- 
lem, taught  him  to  be  careful  about  telling  other  peo- 
ple's secrets,  even  to  his  nearest  friend.  He  was  to 
go  on  important  business  down  into  Maine  to  secure 
a  debt.  The  evening  before  he  set  out  he  happened 
to  mention  it  to  an  intimate  friend  and  fellow  stu- 
dent. The  next  morning  he  found  that  the  horse, 


LIFE     OF     JUDGE     SMITH.  25 

which  he  had  counted  upon  having,  was  gone,  and 
immediately  suspected  that  he  was  anticipated  by  his 
friend,  who,  being  left  in  charge  of  his  father's  busi- 
ness, had  sent  off  a  messenger  at  midnight  to  secure 
a  debt  which  was  due  to  him.  Mr.  Smith  took  the 
best  horse  he  could  get,  and  found,  by  inquiries  upon 
the  road,  that  he  was  gaining  on  his  competitor. 
Before  evening  his  horse  gave  out ;  but  another  was 
procured.  It  was  a  chilly  night  as  he  rode  through 
the  Wells  woods  in  his  nankin  small  clothes  and 
thread  stockings,  but  he  pressed  on,  and  at  last  stop- 
ped at  a  public  house  where  the  other  messenger  was 
asleep.  He  procured  some  refreshments  for  himself 
and  horse,  and,  wishing  his  competitor  a  sound  night's 
sleep,  rode  on  and  accomplished  his  object.  The 
first  man  he  met  on  his  return  was  his  friend,  who 
immediately  called  out  to  him  ;  "  Well,  Smith,  I 
know  all  about  it.  You  've  beat,  and  I  am  glad  of 
it ;  for  you  ought  to  beat."  His  friend  was  the  Hon. 
Benjamin  Pickman,  a  man  who  carried  with  him 
through  life  the  nicest  sense  of  honor,  and  between 
whom  and  himself  this  little  matter  did  not  cause  a 
moment  of  estrangement  or  ill-feeling.  As  long  as 
they  lived  they  cherished  towards  each  other  senti- 
ments of  affectionate  respect,  and  when,  after  more 
than  forty  years,  heavy  domestic  calamities  had  fallen 
upon  them  both,  they  met,  as  from  two  opposite  poles 
in  temperament,  but  with  warm  mutual  sympathy  and 
kindness. 


CHAPTER   II. 

1786  —  1790. 

AT  THE  BAR INFLUENCE  IN  THE  TOWN  OF  PETERBO- 
ROUGH —  IN  THE   NEW  HAMPSHIRE  LEGISLATURE. 

MR.  SMITH  was  admitted  to  the  bar  by  the  court 
of  common  pleas  holden  at  Amherst,  Hillsborough 
county,  N.  H.,  in  the  spring  of  1786,  and  under  cir- 
cumstances that  cost  him  a  good  deal  of  anxiety. 
His  course  of  study,  as  we  have  seen,  had  been  much 
interrupted  by  other  occupations,  and,  though  he  pro- 
duced ample  evidence  of  his  legal  qualifications,  it 
was  not  easy  to  show  precisely  how  much  time  he 
had  spent  in  acquiring  them.  There  was  a  strong 
feeling  among  the  lawyers  against  his  admission. 
The  court  was  to  adjourn  on  Saturday,  and  he  could 
not  succeed  in  getting  a  meeting  of  the  bar  called  till 
Friday  morning,  when,  after  considering  his  applica- 
tion, they  rejected  it,  on  the  ground  of  its  not  being 
accompanied  by  the  proper  certificates.  He  immedi- 
ately set  out  on  horseback  for  Salem,  and,  having  rode 
all  night,  arrived  at  Amherst  the  next  morning  with 
the  required  recommendation  from  Mr.  Pynchon, 


LIFE    OF    JUDGE    SMITH.  27 

which  he  offered  to  the  president  of  the  bar,1  with  a 
request  that  another  meeting  might  be  called.  This 
was  refused  on  the  ground  of  want  of  time  ;  when 
Mr.  Smith  rose  and  appealed  to  the  court,  who  were 
so  convinced  of  the  envious  injustice  with  which  he 
had  been  treated,  that,  waiving  the  usual  forms,  they 
at  once  unanimously  admitted  him.  The  bar  were 
exceedingly  angry,  and  spent  the  remainder  of  the 
forenoon  in  the  most  taunting  remarks  and  insinua- 
tions. One  moved  that  Jo  Blanchard  should  be  ad- 
mitted to  the  bar  ;  another  proposed  Judge  Shepherd, 
a  man  who  turned  tory  during  the  war  and  joined 
the  British  ;  and  other  members  of  the  bar,  in  insult- 
ing tones,  proposed  others  who  were  either  notoriously 
ignorant  or  notoriously  wicked.  The  court  paid  no 
attention  to  them,  and  they  could  only  comfort  them- 
selves by  asserting,  that  it  was  of  no  consequence,  as 
he  certainly  would  not  be  admitted  to  the  superior 
court.  But  the  young  man  whom  they  so  despised 
for  his  want  of  legal  knowledge,  almost  immediately 
took  his  place  at  the  head  of  the  bar.  At  the  next 
session  he  appeared  with  a  full  docket,  and  was  em- 


1  Joshua  Atherton.  The  Hon.  Charles  H.  Atherton,  formerly  rep- 
resentative in  congress,  and  a  distinguished  member  of  the  New 
Hampshire  bar,  was  his  son.  Joshua  Atherton  was,  in  1788,  a  member 
of  the  convention  for  ratifying  the  constitution  of  the  United  States ; 
and  the  only  relic,  it  is  said,  that  has  been  preserved  of  the  debates  in 
the  convention,  is  a  speech  of  his  against  the  constitution,  because  it 
sanctioned  slavery  and  the  slave  trade.  He  was  the  grandfather  of  the 
Hon.  Charles  G.  Atherton,  who,  as  a  representative  in  congress,  was 
the  first  to  propose  a  resolution,  by  which  all  petitions  relating  to  slavery 
should  be  rejected  without  a  hearing,  and  who,  in  the  United  States 
senate,  has  given  his  vote  for  the  annexation  of  Texas  ;  and,  of  course, 
for  the  indefinite  perpetuity  and  extension  of  slavery. 


28  LIFE    OF    JUDGE    SMITH. 

ployed  to  argue  their  causes  by  some  of  the  very  men 
who  had  most  violently  opposed  his  admission.1 

What  his  feelings  were,  may  be  seen  in  the  follow- 
ing extracts  from  a  letter  written  to  William  Plummer, 
in  October,  1787.  "  I  hate  a  monopolizing  spirit ;  and 
though  the  profession  seems  somewhat  crowded  at 
present,  the  harvest  small,  and  the  laborers  very  many, 
yet  I  cannot  help  thinking  that  there  is  room  for  as 
many  good  characters  as  may  be  disposed  to  enter 
into  the  profession."  Then,  after  mentioning  his  ap- 
plication to  the  bar,  he  says  —  "I  had  the  mortifica- 
tion to  hear  for  answer,  that  their  wisdoms  were  not 
fully  satisfied,  and  that  they  had  continued  it  for 
further  consideration.  This  new  mortification  I  had 
to  bear,  as  if  the  humiliating  circumstance  of  barely 
asking  for  admission  into  such  a  brotherhood  were  not 
enough  in  all  conscience.  'T  is  devilish  provoking  to 
be  denied  admittance  into  bad  company.  I  knew  I 
was  not  so  well  qualified  as  I  ought,  and  would  have 
been  glad,  to  have  been  ;  but  my  age  and  circumstan- 
ces (especially  when  I  adverted  to  the  character  and 
pretensions  of  those  already  admitted,)  determined 
me  to  waive  all  ceremony,  and  apply  directly  to  the 
court,  which  I  did  at  the  adjournment,  and  was  ad- 
mitted by  their  unanimous  voice.  This  bold  stroke 
gave  great  umbrage,  you  have  undoubtedly  heard.  I 
do'nt  know  that  I  was  right ;  I  was  governed  by  the 


1  This  account  I  took  down  from  the  lips  of  the  venerable  Timothy 
Farrar,  the  judge  who  then  presided  in  the  court  of  common  pleas,  and 
who,  at  the  age  of  ninety-six,  retained  a  distinct  remembrance  of  all  the 
particulars  of  the  transaction.  There  is,  it  will  be  seen,  a  slight  differ- 
ence between  this  statement  and  that  which  follows. 


LIFE    OF    JUDGE    SMITH.  29 

impulse  of  the  moment,  and  he  whose  feelings  har- 
monize with  mine  will  not  condemn  me." 

Mr.  Smith  was  now  in  a  field  which  gave  full  em- 
ployment to  his  powers.  The  condition  of  the  coun- 
try at  that  time,  the  crude  and  unsettled  state  of  so- 
ciety, and  the  not  less  crude  and  unsettled  state  of 
the  law,  tended  greatly  to  multiply  the  causes  of  liti- 
gation. As  an  attorney,  he,  from  the  beginning,  ex- 
ercised his  influence  in  discouraging  the  foolish, 
angry,  and  wasteful  suits  which  then  formed  so  large 
a  part  of  the  business  of  the  profession.  Sometimes 
with  pleasantry,  sometimes  with  earnest  remonstrance 
and  serious  arguments,  he  turned  away  those  who 
were  intent  on  ruining  themselves  ;  and  it  was  thought 
by  many  of  the  most  considerate  men,  that  the  town 
of  Peterborough  might  well  afford  to  pay  him  five  or 
six  hundred  dollars  a  year,  for  what  he  saved  to  the 
inhabitants  by  preventing  lawsuits.  As  an  instance, 
a  man  came  to  him  greatly  irritated  against  his  bro- 
ther for  his  unjust  and  oppressive  conduct.  "  And 
can  you  prove  all  this  ?  "  was  the  question,  after  the 
injured  man  had  worked  up  his  feelings  by  recount- 
ing his  wrongs.  "  Certainly,  I  can."  "  Do  you  like 
David's  Psalms  ?  "  "  Why,  yes,"  said  the  man,  some- 
what amazed.  "So  do  I,"  said  the  lawyer;  "I 
think  there  is  a  great  deal  of  good  reading  in  them. 
One  in  particular  I  have  read  a  great  many  times,  and 
think  it  excellent.  I  can't  remember  exactly  which 
it  is  ;  but  it  is  somewhere  near  the  hundred  and  thir- 
tieth, and  you  may  easily  find  it  when  you  go  home. 
It  begins  with  these  words,  '  Behold,  how  good  and 
3* 


30  LIFE    OF    JUDGE    SMITH. 

how  pleasant  it  is  for  brethren  to  dwell  together  in 
unity ! '  " 

The  practice  of  that  day  in  New  Hampshire  was 
not  of  the  kind  best  fitted  to  make  a  profound  law- 
yer. "  The  judges  were  not  always  men  who  belonged 
to  the  profession  ;  and  even  the  chief  justice  of  the 
superior  court,  at  a  much  later  day,  in  his  charges  to 
the  jury,  was  accustomed  to  say,  "  Gentlemen,  the 
merits  of  the  case  are  the  law  of  the  case,  and  of 
both  you  are  to  judge."  Of  course,  the  object  of  the 
counsel  was  rather  to  get  the  good-will  of  the  jury, 
than  to  argue  cases  on  the  broad  principles  of  law ; 
and  legal  decisions  were  made  to  depend  less  on  law 
than  on  feeling,  that  most  uncertain  and  often  un- 
just of  guides.  It  is  usually  at  such  times,  when 
it  is  the  fashion  to  establish  equity  in  the  place  of 
law,  that  great  legal  principles  are  made  subser- 
vient to  vague  ideas  of  justice,  and  the  inferior  arts 
and  quibbles  of  the  profession  are  most  in  the  ascend- 
ant. At  all  events,  this  was  the  state  of  things  in 
New  Hampshire,  when  Mr.  Smith  came  to  the  bar ; 
and  during  the  four-and-thirty  years  that  followed, 
comprehending  the  whole  of  his  active  life,  the  one 
public  object,  to  which,  above  all  others,  he  devoted 
his  time,  his  strength,  the  earlier  essays  and  the  riper 
fruits  of  his  vigorous  and  disciplined  mind,  was  to 
bring  about  a  better  administration  of  justice.  As  a 
practitioner,  he  strove  to  introduce  a  better  practice  ; 
and  in  this  he  was  powerfully  aided  by  a  few,  who 
soon  after  followed  him  into  the  profession,  bringing 
with  them  an  amount  of  professional  zeal  and  indus- 


LIFE    OF    JUDGE    SMITH.  31 

try,  an  acuteness  of  discrimination,  and  a  massive  in- 
tellectual power,  through  which  some  of  them  have 
risen  to  a  rank  not  inferior  to  that  of  any  lawyers  in 
the  United  States. 

It  is,  however,  from  the  nature  of  the  case,  impos- 
sible to  point  out  the  particular  improvements  that 
were  introduced,  or  where  effects  are  known,  to  refer 
them  always  to  their  true  cause.  The  great,  and 
usually  the  most  important  influence  of  a  leading 
practitioner  at  the  bar,  and  to  an  almost  equal  extent, 
of  a  judge  upon  the  bench,  is  the  silent  influence  of 
mind  and  character.  The  artifices  of  the  profession, 
the  paltry  shifts  of  legal  cunning,  and  the  subterfuges 
of  ignorance  insensibly  lose  their  respectability,  and 
are  shamed  out  of  countenance  by  the  piercing  look 
of  one  who  sees  through  them  at  a  glance,  and  who, 
it  is  known,  will  expose  them  to  laughter  and  con- 
tempt. It  is  equally  difficult  to  measure  the  influence 
of  such  an  example  upon  the  young  in  awakening 
their  ambition  and  directing  their  studies.  Yet, 
though  we  cannot  trace  it  step  by  step,  it  is  easy  to 
see  how  in  these  two  ways  alone,  an  entire  revolution 
may  be  brought  about  by  one  or  two  powerful  minds 
in  the  whole  administration  of  justice  throughout  a 
state.  Such  a  change  undoubtedly  did  take  place 
in  the  courts  of  New  Hampshire,  and  I  believe  that 
all  intelligent  men,  who  have  looked  into  the  subject, 
will  unite  in  attributing  it  to  Mr.  Smith,  more  than 
to  any  other  single  man. 

The  whole  country,  after  the  war,  and  especially 
the  legal  profession,  was  infested  by  a  set  of  idle  and 


3%  LIFE     OF     JUDGE     SMITH. 

worthless  fellows,  who  lived  by  practices  which  are 
now  hardly  known  in  New  England,  vitiating  the 
characters,  and  preying  upon  the  time  of  the  young. 
Mr.  Smith  was  at  this  early  period,  thrown  much 
into  their  society,  but  he  had  no  part  nor  fellowship 
with  them.  He  did  not  set  himself  up  as  an  exam- 
ple, nor  treat  them  with  harshness,  but  never  fre- 
quenting their  places  of  meeting,  he  contrived,  by 
various  expedients,  to  shake  them  off,  when,  in  their 
visits  to  him,  they  were  consuming  the  time  which 
he  wished  to  employ  in  his  studies. 

All  professional  men,  in  country  towns,  are  subject 
more  or  less  to  one  annoyance  —  the  disposition  of 
clients  to  prolong  their  visits,  after  their  business  is 
finished.  This  affliction  fell  particularly  heavy  on 
Mr.  Smith,  owing  to  his  easy  and  friendly  manners, 
and  the  charms  which  his  conversation  had  for  per- 
sons of  all  classes.  The  good  people  of  Peterborough 
and  the  neighboring  towns,  while  sitting  in  his  office 
before  a  cheerful  fire,  and  listening  to  his  conversa- 
tion, full  of  wit  and  instruction,  often  lost  all  proper 
regard  both  for  his  time  and  their  own.  He  was, 
therefore,  driven  to  contrivances  to  shorten  their  long 
visits.  One  was,  when  he  saw  a  regular  sitter  ride 
up,  to  order  his  horse  to  be  saddled,  or  to  take  the 
bridle  and  go  himself  towards  the  pasture.  This 
would  sometimes,  he  used  to  say,  shorten  the  visit ; 
but  sometimes  his  friend  would  be  so  exceedingly 
kind  as  to  assist  him  in  getting  his  horse,  and  then 
would  propose  to  ride  with  him. 

Through  life  Mr.  Smith  was  one  of  the  most  in- 


LIFE     OF     JUDGE     SMITH.  36 

dustrious  of  men,  and  always  took  great  satisfaction 
in  thinking  that,  whatever  might  have  been  his  suc- 
cess, he  had  spared  no  time  or  labor,  but  had  done 
all  that  he  could.  He  was,  to  use  an  old  English 
word,  a  most  painful  practitioner,  and  never  willing 
to  bring  a  cause  into  court  without  thorough  prepar- 
ation. He  had  not  the  unmanly  fears  through  which 
great  talents  sometimes  wear  themselves  out  in  those 
minute  and  fruitless  investigations,  which  embarrass 
and  perplex  the  mind  rather  than  give  it  strength. 
No  man  could  act  with  greater  boldness,  but  his  bold- 
ness arose  from  the  consciousness  of  having  gained 
the  mastery  of  his  subject,  and  was  not  the  reckless 
and  ruinous  self-confidence,  through  which  so  many 
promising  young  men  foolishly  consider  themselves 
exempted  from  the  necessity  of  exertion,  and  there- 
fore dwindle  into  insignificance. 

The  amount  of  Mr.  Smith's  practice  at  the  bar 
during  the  ten  years  that  he  kept  his  office  in  Peterbo- 
rough, though  probably  equal  to  that  of  any  other  law- 
yer then  in  the  county,  must  have  been  small  compared 
with  what  it  was  some  years  afterwards.  He  very 
soon  engaged  in  public  life.  In  1786  he  was  chosen 
town  clerk.  In  1787  he  was  appointed  surveyor  of 
highways,  for  the  district  in  which  he  lived.  It  had 
previously  been  the  custom  to  allow  the  same  price  to 
all  the  men  that  worked  upon  the  roads,  and  the  con- 
sequence was  that  in  some  families  the  highway  taxes 
were  worked  out  mostly  by  the  old.  But  Mr.  Smith 
determined  to  allow  them  but  half  price,  and  fixed  on 
that  rate  for  his  father  and  Major  Wilson,  another 
aged  man  of  great  consequence  in  the  town.  This 


34  LIFE     OF     JUDGE     SMITH. 

produced  a  high  opinion  of  his  independence  and 
justice,  and  as  he  himself  worked  upon  the  roads  with 
his  neighbors,  he  acquired  such  a  reputation  that  on 
the  following  spring  he  was  chosen  representative  to 
the  general  court. 

In  another  capacity  he  performed  a  much  more  im- 
portant service  for  his  native  place.  There  were  two 
or  three  of  his  townsmen,  who,  without  having  studied 
the  profession,  entertained  a  very  high  opinion  of 
their  legal  attainments,  and  had  contrived  to  impress 
it  on  others.  As  is  usual  with  such  persons,  they 
had  a  great  disposition  to  put  their  knowledge  in 
practice.  Like  some  young  surgeons,  who  begin  by 
trying  the  lancet  upon  their  own  muscles,  they  began 
by  law  suits  of  their  own,  and  then,  having  induced 
the  town  to  engage  in  a  foolish  and  unjust  suit,  they 
were,  in  1782,  appointed  a  committee  to  carry  it  on, 
and  soon  after  were  appointed  a  standing  committee, 
with  full  powers  to  carry  on  all  suits  for  and  against 
the  town.  As  a  consequence,  the  town  was  engaged 
in  long  and  vexatious  suits,  without  either  law  or 
justice  on  their  side.  The  object  of  the  committee 
seems  to  have  been  to  resist  just  claims,  and  then 
worry  out  their  adversaries  by  delays,  which  usually 
involved  the  town  in  costs  greatly  beyond  the  original 
demand  against  it.  The  more  respectable  of  the 
inhabitants  were  violently  opposed  to  such  a  course 
on  the  ground  both  of  principle  and  expediency  ;  but 
such  was  the  general  confidence  in  the  legal  ability 
of  their  agents,  that  year  after  year  they  were  contin- 
ued in  office.  At  length,  in  April,  1787,  Jeremiah 
Smith  was  chosen  in  their  place.  There  was,  how- 


LIFE     OF     JUDGE     SMITH.  35 

ever,  a  violent  opposition  ;  the  whole  town  was  in 
commotion,  and  on  the  22d  of  June,  it  was  voted  to 
dismiss  him  to  make  room  for  the  old  committee. 
But  at  a  town  meeting  on  the  9th  of  July,  this  vote 
was  reversed,  and  Mr.  Smith  was  again  appointed 
agent.  Thus,  in  the  course  of  the  year,  seven  town 
meetings  were  holden  on  this  subject  with  various 
success,  till  at  last  the  old  committee  were  perma- 
nently displaced  ;  and  through  the  judicious  manage- 
ment of  the  new  agent,  the  town  was  freed  from  its 
costly  and  harassing  experiments  in  the  law. 

During  the  three  or  four  years  that  followed,  all  the 
public  business  of  the  town  came,  in  a  great  degree, 
under  his  supervision,  and  was  placed  on  a  new  and 
greatly  improved  basis.  For  several  years  he  was 
one  of  the  selectmen,  and  according  to  the  testimony 
of  one  who  served  with  him,  "  performed  all  the  la- 
bors of  the  office  himself,  till  he  had  taught  them  a 
better  way,"  when  he  declined  being  any  longer  a 
candidate.  He  made  great  efforts  for  the  improve- 
ment of  the  public  schools,  and  through  his  influence 
five  new  school-houses  were  built  in  1791.  He  suc- 
ceeded, too,  in  procuring  for  the  town  better  teach- 
ers than  they  had  before  had,  and  an  impulse  was 
given  to  the  cause  of  education,  which  has  been  felt 
in  the  character  of  the  inhabitants  ever  since.  A 
small  social  library  was  got  up  ;  good  books  thus 
brought  within  the  reach  of  the  young,  were  read 
with  eagerness  and  care  ;  important  subjects  in  theo- 
logy, metaphysics  and  politics,  were  made  the  com- 
mon topics  of  conversation  among  young  men,  and 
were  discussed  with  correctness  of  language,  with 


36  LIFE     OF     JUDGE     SMITH. 

energy  and  ability.  In  this  way,  a  race  of  strong- 
minded,  well-informed  and  thinking  men  grew  up. 
There  was  a  beech  tree  near  the  meeting-house, 
where  they  used  to  assemble  before  and  after  the  ser- 
vice on  Sunday.  I  use  here  the  strong  language  oi 
one,1  who  remembers  well  the  discussions  he  de- 
scribed, and  who,  in  his  own  striking  eloquence, 
unites  many  of  the  finest  qualities  of  the  Peterborough 
character.  "  Religion,  politics,  literature,  agriculture 
and  various  other  important  subjects  were  there  dis- 
cussed. Well,  distinctly  well  do  I  remember,  those 
debates.  No  absurd  proposition  or  ridiculous  idea 
escaped  exposure  for  a  single  moment.  A  debater  then 
had  to  draw  himself  up  close,  be  nice  in  his  logic  and 
correct  in  his  language,  to  command  respectful  atten- 
tion. Strong  thought  and  brilliant  conceptions  broke 
forth  in  clear  and  select  language.  They  were  read- 
ing men,  thinking  men,  forcible-talking  men,  and  sen- 
sible men.  Bright  intellectual  sparks  were  constantly 
emanating  from  those  great  native  minds  ;  and  fall- 
ing upon  younger  minds,  kindled  up  their  slumbering 
energies  to  subsequent  noble  exertion.  The  imme- 
diate effect  of  those  discussions  could  be  easily  traced 
in  the  beaming  eye  and  the  agitated  muscles  of  the 
excited  listeners.  It  was  obvious  to  an  acute  observer, 
that  there  was  a  powerful  effort  going  on,  in  many  a 
young  mind  among  the  hearers,  to  seize,  retain  and 
examine  some  of  the  grand  ideas  that  had  been 
started  by  the  talkers.  This  rousing  of  the  young 


1  General  James  Wilson,  in  his  speech  at  the  Peterborough  Centen- 
nial, October  24,  1839. 


LIFE     Or     JUDGE     SMITH.  37 

mind  to  manly  exertion,  and  aiding  it  in  arriving  at  a 
consciousness  of  its  own  powers,  was  of  great  advan- 
tage where  the  seeds  of  true  genius  had  been  planted 
by  the  hand  of  nature." 

We  must  allow  something  for  the  enthusiasm  of 
one  speaking  on  such  an  occasion,  of  the  citizens  of 
his  native  town  ;  but  there  were  among  those  who 
grew  up  with  Jeremiah  Smith,  and  who  came  upon 
the  stage  while  he  resided  in  Peterborough,  men  who 
would  have  been  distinguished  in  any  place  for  their 
intellectual  endowments.  His  brother  John,1  was 
considered,  by  those  who  knew  them  both,  as  his  su- 
perior in  native  strength.  James  Wilson  was  a  man 
of  strong  sense  and  of  a  quick,  impassioned  elo- 


1  He  was  for  many  years,  an  able  and  influential  member  of  the  New 
Hampshire  legislature.  Notwithstanding  his  plainness  of  speech  and 
the  pungency  of  his  wit,  he  was  a  man  greatly  honored  and  beloved, 
and  his  sudden  and  violent  death,  in  August,  1821,  caused  a  deep  sensa- 
tion of  grief  through  the  whole  community  in  which  he  lived.  The  pre- 
sent governor  of  New  Hampshire,  John  H.  Steele,  who  always  differed 
from  him  in  politics,  has,  with  a  warmth  of  feeling  alike  creditable  to 
both,  thus  described  him.  "  If  Peterborough  can  boast  of  a  better,  more 
useful,  brighter,  purer-hearted  son  than  was  John  Smith,  I  know  him 
not.  That  she  can  point  to  many,  whose  exterior,  both  in  dress  and 
address,  comes  much  nearer  to  what  is  termed  a  finished  gentleman,  no 
one  will  doubt.  But  where  now  is  the  man,  who  never  lets  a  human 
being  pass  him  unheeded  ;  whose  ever-active  mind  and  ready  talent  can, 
draw  forth  alike  the  budding  powers  of  childhood,  or  those  of  ripened 
age ;  who  is  ever  ready  to  aid,  counsel  or  direct,  with  wisdom,  purse  or 
hand,  his  fellow  man  ?  Such  a  man  was  John  Smith.  With  an  ad- 
dress, which  to  a  stranger  appeared  rough  and  rugged  as  the  mountains 
which  surround  his  native  town,  he  possessed  a  heart  as  tender  and  pure 
as  ever  animated  the  breast  of  man.  To  him  I  owe  more  than  I  can 
express.  He  was  not  only  a  friend  but  a  father.  He  taught  me  to  be- 
lieve that  there  is  nothing  impossible  ;  nothing  that  a  willing  mind  and 
active  hand  cannot  accomplish.  I  yet  seem  to  hear  his  voice  reproving 
me  for  saying,  /  cannot  do  it!  '  Why  don't  you  try,'  he  would  say, 
'  and  not  stand  there  looking  as  if  you  were  in,  a  trance  ? ' " 
4 


38  LIFE     OF     JUDGE     SMITH. 

quence.  And  -there  were  others  fully  able  to  main- 
tain their  side  of  the  argument  against  them. 

During  three-  years,  1788,  1789,  and  1790,  Mr. 
Smith  represented  the  town  in  the  general  court, 
and  took  there  the  same  high  place  which  he  had  al- 
ready taken  at  the  bar.  In  1789  and  1790  he  was 
chairman  of  the  committee  appointed  "  to  select,  re- 
vise, and  arrange  all  the  laws  and  public  resolves  then 
in  force,  whether  passed  before  or  since  the  Revolu- 
tion." The  labor  devolved  almost  entirely  on  him, 
and  took  up  all  the  time  he  could  spare  for  two  or 
three  years.  The  work  he  accomplished  is  not  easily 
estimated,  but  must  have  been  of  great  and  important 
service  to  the  state.  As  an  evidence  of  the  stand  he 
took  in  the  legislature,  it  may  be  mentioned  that  the 
house,  having  voted  (June  17,  1790)  to  impeach  the 
Hon.  Wodbury  Langdon,  one  of  the  justices  of  the 
superior  court,  appointed  Mr.  Smith  to  conduct  the 
impeachment,  although  he  had  voted  against  it.  He 
was  obliged  to  go  to  Worcester,  Mass.,  to  get  forms  by 
which  he  might  draw  up  the  articles  of  impeachment. 
His  speech,  which  is  preserved,  written  out  in  full, 
shows  some  of  the  characteristics  of  his  mind,  but 
lacks  the  heartiness  with  which  a  strong  man  utters 
himself,  when  he  has  full  confidence  in  his  cause. 

The  principal  charge  brought  against  Judge  Lang- 
don was,  neglect  of  the  duties  of  his  office,  in  conse- 
quence of  too  great  devotion  to  his  private  business. 
The  following  extracts  are  given,  as  showing  what 
notions  Mr.  Smith  then  had  of  the  duties  of  a  judge. 
"  To  say  nothing  of  the  great  qualities  in  a  judge, 
knowledge  in  discerning  the  true  merits  of  a  cause, 


LIFE    OF    JUDGE    SMITH.  39 

rectitude  of  heart,  and  strict  impartiality  in  deciding 
upon  it,  which  are  indispensable,  I  apprehend  that  a 
steady  and  close  attention  to  the  business,  both  in 
term-time  and  in  the  vacation,  is  equally  necessary. 
Nature  hath  not  been  so  lavish  to  any  of  her  sons,  as 
to  give  them  an  intuitive  knowledge  of  any  science 
without  the  labor  of  close  thought  and  reflection.  A 
judge  must  be  possessed  of  great  patience  in  hearing, 
and  coolness  in  deliberating.  He  must  especially  dis- 
engage himself  from  all  other  business  and  employ- 
ment, and  devote  himself  to  the  duties  of  the  office. 
There  is  a  dictum  in  one  of  the  books  of  reports, 
which,  I  suppose,  will  pass  for  very  good  law  in  this 
court  — '  Ye  cannot  serve  God  and  Mammon  '  — 
you  cannot  be  a  judge  and  a  merchant.  'T  is  easy 
to  guess,  in  this  contest,  which  will  get  the  mastery. 
I  fear,  if  we  look  into  human  nature,  we  shall  find  it 
written  in  page  the  first,  in'  very  legible  characters, 
that  interest  will  prevail,  and  that  our  judge  will  be 
more  solicitous  about  fitting  out  his  brig,  than  about 
settling  a  knotty  point  of  law.  He  will  be  too  apt  to 
be  disposing  of  a  cargo,  when  he  should  be  dispensing 
justice. 

"  This  attention  to  private  business  has  been  the 
bane  of  public  justice.  To  this  it  has  been  owing 
that  our  courts  of  law,  when  they  have  pretended  to 
sk  to  dispense  justice,  have  rather  dispersed  than  dis- 
pensed it.  To  the  same  cause  it  has  been  owing,  that 
difficult  cases  of  law  have  been  determined  without 
any  deliberation,  and  the  very  same  question  has  re- 
ceived different  determinations.  In  short,  instead  of 
justice  running  in  a  clear,  a  steady  and  broad  chan- 


40  LIFE    OF    JUDGE    SMITH. 

nel,  it  has  all  the  impetuosity  of  a  torrent,  and,  like  a 
torrent,  bears  down  all  before  it.  The  consequence 
has  been,  that  nobody  rests  satisfied  with  our  legal 
determinations.  It  is  in  consequence  of  this,  too, 
that  the  legislature,  at  every  session,  are  troubled  with 
so  many  applications  to  restore  persons,  suffering  by 
these  hasty  determinations,  to  law. 

"  One  end  of  legal  decision  of  a  cause  is,  to  sat- 
isfy the  parties ;  but  the  parties  never  will  be  satis- 
fied, unless  their  cause  has  been  coolly,  deliberately, 
and  fully  heard.  This  a  judge  never  will  do,  if  he  is 
entangled  with  private  affairs.  The  parties  think, 
and  have  been  heard  to  say,  that  when  the  honorable 
judge's  brig  goes  to  sea,  he  will  be  more  at  leisure. 
If  the  brig  sails  or  arrives  in  term-time,  the  inhabit- 
ants of  Cheshire  and  Grafton  need  not  expect  to  see 
the  honorable  judge.  These  are  facts  I  do  not  mean 
to  exaggerate. 

"  With  respect  to  individuals,  who  have  causes 
pending  in  court,  it  is  easy  to  conceive  that  they 
must  be  great  sufferers  by  this  delay  of  justice  ; 
though  it  is  not  easy  to  conceive  of  the  full  extent 
of  their  sufferings.  That  a  poor  unhappy  citizen, 
who  is  so  unfortunate  as  to  be  confined  on  suspicion 
of  having  committed  some  offence  against  the  pub- 
lic, should  suffer  the  horrors  of  imprisonment  six 
months  or  a  year  longer,  because  the  court  should 
refuse  to  sit  to  try  him,  and  give  him  an  opportunity 
of  showing  forth  his  innocence,  is  something  ;  that 
an  honest  citizen  should  lose  his  debt,  perhaps  his 
all,  because  the  court  neglect  to  do  their  duty,  is 
something ;  that  juries,  witnesses  and  parties  should 


LIFE    OF   JUDGE    SMITH.  41 

be  summoned  to  attend,  and  no  court  to  trans- 
act business  should  assemble,  is  no  small  griev- 
ance." 

Judge  Langdon  wa£  acquitted,  and  soon  after  re- 
signed his  office. 

A  little  incident  occurred  about  this  time  which, 
Mr.  Smith  said,  made  a  lasting  impression  on  his 
mind,  and  which,  in  the  latter  part  of  his  life,  he 
used  to  tell  for  the  benefit  of  young  men  disposed 
to  indulge  their  wit,  without  regard  to  the  feelings  of 
others.  While  in  the  legislature,  he  one  day,  by 
some  humorous  remarks,  raised  quite  a  laugh  in  the 
house  at  the  expense  of  a  venerable  man,  who 
was  universally  respected  for  his  delicacy  of  feeling, 
good  sense,  and  moral  worth.  As  he  was  coming 
out,  the  Hon.  John  Pickering,  afterwards  chief  jus- 
tice of  the  state,  complimented  him  on  the  wit  and 
talent  he  had  shown  ;  "  but,"  he  added  with  emo- 
tion, "  nothing  on  earth  would  tempt  me  so  to 
wound  the  feelings  of  a  worthy  old  man  like  him." 

Mr.  Smith  used  to  cause  a  good  deal  of  amuse- 
ment, by  the  manner  in  which  he  gave  an  account 
of  his  first,  and  I  believe  last,  military  appointment. 
He  and  Major  Webster,  the  father  of  Daniel  and 
Ezekiel  Webster,  had  been  delegated  by  the  house, 
in  1790,  to  go  to  Kingston  and  inform  Dr.  Josiah 
Bartlett  of  his  election  as  governor.  They  arrived 
there  Saturday  evening,  went  to  meeting  with  the 
governor  on  Sunday,  and,  before  setting  out  with 
him  on  Monday,  found  that  he  had  paid  their  bills  at 
the  tavern.  Their  approach  to  the  capitol  was  an- 
nounced by  the  firing  of  guns,  which  so  frightened 


42  LIFE    OF   JUDGE    SMITH. 

their  horses  that  Mr.  Smith  was  thrown  flat  upon 
his  back.  It  so  happened  that  the  governor's  hat 
and  wig  fell  to  the  ground  at  the  same  instant,  and 
Mr.  Smith,  with  admirable  presence  of  mind,  picked 
them  up  and  gave  them  back  to  him.  It  was  sup- 
posed that  he  had  leaped  from  his  horse  for  no  other 
purpose,  and  on  account  of  the  agility  he  had  dis- 
played in  horsemanship,  he  was  appointed  aid  to  his 
Excellency,  with  the  rank  of  colonel. 

In  1791  -2  Mr.  Smith  was  a  member  of  the  con- 
vention, chosen  to  revise  the  constitution  of  New 
Hampshire.  He  took,  in  the  deliberations  of  that 
body,  an  active  and  important  part.  The  records, 
though  he  was  not  the  clerk,  are  mostly  in  his  hand- 
writing ;  and  he  must  have  been  of  great  service  in 
drawing  up  the  different  articles.  I  find  his  vote 
recorded  in  favor  of  expunging  that  clause  in  the 
constitution,  by  which  "  no  person  can  be  capable 
of  being  elected  a  senator,  (or  representative,)  who  is 
not  of  the  protestant  religion  ; "  an  article  which  is 
still  in  the  constitution. 

An  anecdote  relating  to  a  period  a  little  earlier  than 
this,  and  which  has  nothing  to  do  with  legislation, 
may  here  be  told,  as  characteristic  of  Peterborough 
manners,  and  as  showing  how  far  Mr.  Smith  would 
sometimes  carry  a  joke.  James  Wilson,  while  a 
member  of  college,  was  suspended  for  some  youthful 
indiscretions.  Mr.  Smith  intimated  to  Major  Wil- 
son, the.  father,  who,  though  a  sensible  man,  knew 
nothing  of  college  rules,  that  it  was  probably  on  ac- 
count of  his  extraordinary  scholarship  that  his  son 
had  been  allowed  to  come  home  before  his  time. 


LIFE    OF   JUDGE    SMITH.  43 

This  testimony  was  in  danger  of  being  called  in 
question,  by  the  untimely  arrival  of  a  letter  from 
President  Willard.  Mr.  Smith,  and  very  likely  most 
of  the  wits  of  the  town,  (for  Major  Wilson  kept  a 
public  house  that  was  greatly  frequented,)  happened 
to  be  there  when  it  came,  and  the  Major's  spectacles 
not  being  at  hand,  he  promptly  offered  to  read  it. 
He  went  on  with  perfect  ease  reading  it,  as  if  it  had 
been  a  family  letter  from  the  Major's  brother-in-law, 

Mr.  H ,  giving  such  domestic  intelligence,  and 

such  an  account  of  the  crops,  as  might  be  expected 
from  such  a  quarter.  "  But  what,"  said  the  Major, 
"  what  is  that  name  I  see  in  the  corner  ?  That  is 

not  H ;  it  looks  like  Willard."     «  Oh!"  said 

the  young  lawyer,  "  he  merely  says,  I  send  this  by 
one  Jo  Willard."  This  was  probably  received  with 
shouts  of  laughter  by  the  company  present,  and  Ma- 
jor Wilson's  happy  delusion  was  doubtless  of  short 
continuance. 

In  connexion  with  James  Wilson,  who  was  him- 
self a  wit,  another  anecdote,  which  Judge  Smith 
delighted  to  tell  in  Wilson's  presence,  may  be  given 
here.  After  Smith  had  been  chosen  a  member  of 
congress,  he  was  travelling  with  his  friend,  Wilson, 
towards  Groton.  In  the  course  of  the  day  Wilson 
rode  on  before  his  companion,  and  coming  up  with  a 
stranger,  a  sort  of  horse-jockey,  he,  for  the  sake  of 
sport,  passed  himself  off  as  Mr.  Smith,  the  member 
of  congress.  On  reaching  Groton,  Wilson  began  to 
boast  of  what  he  had  done,  and  how  he  had  been 
taken  for  the  great  man.  "  No,"  said  Smith,  "  but 
when  you  made  the  attempt  the  man  exclaimed, 


44  LIFE    OF   JUDGE    SMITH. 

1  what,  you  Jerry  Smith  !     Why  he  is  a  respectable 
man.' " 

Doubtless  other  anecdotes  might  be  given,  in 
which  the  advantage  was  on  the  other  side.  Mr. 
Wilson  was  graduated  at  Harvard  College  in  1789, 
and  began  to  practise  law  in  Peterborough  about  the 
year  1792,  which,  of  course,  often  brought  him  pro- 
fessionally into  collision  with  Mr.  Smith,  and  which, 
as  Mr.  Smith  was  absent  a  considerable  part  of  the 
year  at  Philadelphia,  must  sometimes  have  given  him 
greatly  the  advantage.  He  took  a  leading  part  in 
the  politics  of  the  state,  was,  at  different  times,  a 
member  of  the  state  legislature  and  a  representative 
in  congress.  He  was  distinguished  at  the  bar,  but 
too  much  devoted  to  his  private  business  to  do 
full  justice  to  his  professional  abilities.  He  died  in 
Keene,  his  place  of  residence  for  many  years,  after 
having  accumulated,  perhaps,  the  largest  estate  ever 
acquired  by  any  lawyer  in  New  Hampshire. 


CHAPTER  III. 

1791  —  1795. 

IN    CONGRESS FIRST     IMPRESSIONS INVALID     PEN- 
SIONERS—  HAMILTON'S  ASSUMPTION  OF  STATE  DEBTS 

INDIAN  WAR ORIGIN    OF  TWO    PARTIES MAD- 

ISON's    TARIFF FRENCH    POLITICS DEMOCRATIC 

CLUBS,    ETC. 

IN  December,  1790,  Mr.  Smith  was  chosen  a  mem- 
ber of  the  second  congress,  which  began  its  session 
the  24th  of  October,  1791.  On  his  way  to  Philadel- 
phia, he  stopped  at  Roxbury,  Massachusetts,  to  be 
inoculated  for  the  small-pox.  While  undergoing  this 
preparatory  discipline  for  congress,  he  was,  accord- 
ing to  one  who  was  there  with  him,  overflowing  with 
spirits,  and,  by  his  vivacity  and  wit,  contributed 
greatly  to  the  life  and  entertainment  of  the  company. 
His  first  impressions  both  of  the  city  of  Philadel- 
phia, and  of  the  body  to  which  he  belonged,  were 
not  of  the  most  favorable  kind,  as  may  be  seen  by 
the  following  extracts  from  letters  to  his  brother : 
October  30.  "  I  arrived  in  this  city  a  week  ago,  and 
last  evening  got  into  lodgings  which  I  do  not  like.  It 


46  LIFE    OF   JUDGE    SMITH. 

will  be  impossible  for  you  to  have  any  idea  of  the  diffi- 
culty of  getting  decent  lodgings.  The  accounts  you 
have  always  had  of  this  great  and  beautiful  city  will 
blind  the  eyes  of  your  understanding  as  they  did 
mine.  I  have  had  so  little  experience  of  congres- 
sional life,  that  I  can  say  but  little  on  that  head.  I 
find,  however,  that  this  august  assembly  is  composed 
of  men  subject  to  like  passions  as  we.  These  south- 
ern gentry  do  not  please  me.  There  are  some  ex- 
ceptions, however,  and  I  intend  to  cultivate  the  good 
opinion  of  all." 

November  22.  "  I  do  not  like  Philadelphia ;  nor 
am  I  very  fond  of  congressional  life.  I  find  myself 
of  very  little  consequence ;  I  am  a  raw  hand,  unac- 
quainted with  men  and  the  modes  of  conducting  bu- 
siness. The  only  consolations  I  have,  are  that  I 
shall  learn,  and  that  I  find  a  few  others  in  my  own 
situation.  They  (the  Philadelphians,)  are  from  the 
highest  to  the  lowest,  —  from  the  parson  in  his  black 
gown  to  the  Jille  de  joie,  or  girl  of  pleasure,  — a  set 
of  beggars.  You  can't  turn  round  without  paying  a 
dollar." 

January  12,  1792.  "  I  am  glad  you  have  had 
resolution  enough  to  avoid  the  loo-table.  I  am  sure 
my  friend  Page,  &c.,  spend  too  much  time  in  this 
way.  I  do  not  think  that  gambling  has  any  ten- 
dency to  better  the  morals,  add  to  the  property,  or 
increase  the  pleasure  and  happiness  of  its  votaries. 
From  what  I  have  said  you  will  be  led  to  believe  that 
I  do  not  play.  In  this  conclusion  you  will  be  justi- 
fied by  the  fact.  It  is  not  an  uncommon  thing  in  this 
city  to  hear  of  a  gentleman  or  lady,  losing  three  or 


LIFE    OF    JUDGE    SMITH.  47 

four  hundred  dollars  at  a  sitting  ;  nor  is  it  uncom- 
mon to  hear  that  the  people  who  gamble  so  high 
are  bankrupts,  and  living  on  the  property  of  other 
people. 

"  I  spend  the  greatest  part  of  my  time  in  my 
chamber  with  my  books,  a  good  collection  of  which 
I  have  purchased.  My  acquaintance  continues  to  be 
small,  but  agreeable  enough." 

In  a  letter  to  A.  Moore,  Esq.,  February,  1792, 
after  speaking  of  a  case  in  which  the  personal  influ- 
ence of  an  accomplished  woman  had  effected  what 
argument  could  not,  he  adds ;  "  Logicians  think 
that  if  they  can  point  their  artillery  at  the  under- 
standing, and  discharge  a  good  volley  of  heavy  shot 
at  the  part  called  the  mind,  it  is  a  mighty  pretty 
thing.  This  is  a  stupid  notion  of  theirs.  The  mind 
is  a  stubborn  thing ;  it  has  a  surprising  faculty  at 
dodging  these  shot.  But  there  are  certain  other 
things,  which  though  they  have  very  little  to  do  with 
reasoning,  are  strangely  convincing." 

From  a  letter  to  D.  Warren,  Esq.,  March  2,  1792. 
"  Do  you  wish  to  know  in  what  light  I  am  consi- 
dered here  ?  Just  as  Allen  is  in  your  house  —  an 
illiberal,  ignorant  fellow,  who  has  never  seen  the 
world,  who  is  startled  at  the  mention  of  millions, 
who  says  nothing,  except  now  and  then  to  snarl  a 
little  at  an  extravagant  grant  of  money.  I  am  of 
too  little  consequence  to  be  courted  by  the  ministry. 
We  have  no  opposition,  else  I  believe  I  should  en- 
list. Don't  be  easily  persuaded,  my  good  friend, 
that  I  am  altogether  inactive  and  stupid.  I  am  learn- 
ing, and  may  possibly  some  time  or  other,  convince 


48  LIFE    OF   JUDGE    SMITH. 

the  world  that  the  fellow  has  more  sense  than  he  ap- 
pears to  have." 

His  brother  Robert,  being  left  a  widower,  had  an 
inclination  to  study  divinity,  and  wrote  to  Jeremiah 
for  advice,  who  replied,  March  29,  1792.  "  You 
have  yourself  suggested  the  principal  objections.  I 
mean  the  advanced  period  of  life,  and  the  want  of 
early  education.  There  must,  in  my  opinion,  be 
very  powerful  considerations,  to  induce  one  circum- 
stanced as  you  are,  in  all  respects,  to  strike  out  a 
new  course.  It  would  certainly  be  thought  very  odd 
in  a  traveller,  who  had  performed  more  than  half  his 
journey,  who  had  made  himself  master  of  the  road, 
the  geography  of  the  country  through  which  he  had 
to  pass,  and  who,  knowing  the  difficulties  that  would 
naturally  present  themselves,  had  learned  to  overcome 
them,  to  desert  the  old  beaten  path  and  to  enter  upon 
a  new  one,  lying  through  a  country  rugged  and  un- 
known. I  am  by  no  means  satisfied  that  a  change  of 
pursuit  would  either  promote  your  happiness,  interest 
or  usefulness.  But  if  you  are  of  a  different  opinion, 
(and  you  certainly  are  the  best  judge,)  it  would  be 
necessary  for  you  to  spend  a  year  or  two  in  prepara- 
tory studies,  in  which  it  may  be  in  my  power,  and  I 
shall  certainly  have  the  inclination,  to  assist  you.  I 
have  purchased  a  very  good  library,  as  well  in  other 
branches  of  learning  as  in  law.  A  small  number  of 
these  are  theological,  and  excellent  of  the  kind.  I 
intend  to  have  a  good  library  in  divinity,  but  I  fancy 
it  will  not  be  that  kind  of  divinity,  which  will  be 
agreeable  to  you.  I  have  but  an  indifferent  opinion 
of  the  clergy  in  this  quarter,  and  think  them  inferior 


LIFE     OF     JUDGE     SMITH.  49 

to  those  of  New  England.  One  hears  in  the  churches 
in  this  elegant  and  polite  city  a  great  deal  of  rant, 
nonsense  and  stuff,  which  would  disgust  one  of  our 
country  congregations.  What  must  the  country  here 
be  !  I  anticipate,  with  some  degree  of  pleasure,  the 
opportunity  I  shall  have  of  improving  the  summer 
coming.  I  am  not  a  man  of  pleasure,  and  have  been 
even  in  Philadelphia,  more  studious  than  I  have  been 
at  any  one  period  of  my  life  heretofore.  I  consider 
it  as  among  the  number  of  unfortunate  circumstances 
attending  me,  that  I  could  not  have  had  a  good  col- 
lection of  books  when  I  left  college. 

"  I  am  not  at  all  attached  to  congressional  life,  and 
can  return  to  private  life  not  only  without  regret,  but 
with  much  pleasure  and  satisfaction.  My  standing 
here  is  as  good  as  I  ought  to  expect.  In  time,  I 
think  I  should  learn  my  duty.  I  have  no  doubt  of 
my  independence  or  integrity,  to  perform  it  faith- 
fully." 

In  a  letter  of  the  same  date  to  his  brother  John  he 
says,  "  I  have  written  R.  If  you  are  right  in  your 
conjectures  as  to  the  new  courtship,  it  will  probably 
prove  more  efficacious  in  preventing  a  change  of  pur- 
suit, than  anything  I  have  said  in  my  letter  to  him.1 
I  begin  to  form  some  acquaintances  in  this  city,  which 
afford  me  much  pleasure.  I  am  almost  in  love  with 
a  little  Quaker.  They  (I  mean  the  ladies  of  that  so- 
ciety) are  gay,  sprightly,  sensible.  But  you  know  I 
am  easily  caught.  I  am  anxious  to  be  home,  that  I 


1  It  was  even  so ;  R.  was  married,  and  nothing  more  was  said  of  a 
change  of  profession. 

5 


50  LIFE    OF    JUDGE    SMITH. 

may  enter  upon  that  course  of  study  which  I  have 
marked  out.  I  must  begin.  I  find  I  know  nothing. 
I  shall  have  an  elegant  assortment  of  books.  Busi- 
ness goes  on  very  slowly  in  congress.  It  is  no  breach 
of  charity  to  suppose  that  the  members  are  at  least  as 
anxious  to  promote  their  own,  as  the  interest  of  the 
public,  —  I  mean  in  creating  offices,  and  getting  them- 
selves or  friends  appointed  to  them.  For,  as  to  the 
wages  and  pay  of  a  member,  when  you  deduct  the 
expenses,  of  which  you  can  have  no  idea,  —  to  say 
nothing  of  the  sacrifices  that  many  must  unavoidably 
make  in  business  at  home,  —  it  cannot  be  considered 
as  a  great  temptation  to  protract  the  business." 

The  consciousness  of  his  own  ignorance,  not  wast- 
ing itself  in  peevish  remarks  on  others,  but  awaken- 
ing within  him  a  longing  for  improvement,  not  only 
in  his  own  profession,  but  in  all  generous  and  useful 
studies,  was  the  secret  of  Mr.  Smith's  subsequent 
distinction  and  success.  Through  life  it  was  his  wish 
to  fit  himself  for  important  stations,  and  the  society 
of  distinguished  men.  If  they  sought  him  out,  he 
was  gratified ;  if  not,  he  may  have  been  disappointed ; 
but,  in  forming  and  carrying  out  yet  larger  plans  of 
intellectual  advancement,  he  always  had  at  hand  re- 
sources and  occupation,  which  might  take  from  dis- 
appointment its  sting,  and  give  a  healthy  exercise 
both  to  his  mind  and  heart. 

During  the  first  two  sessions  of  congress  that  he 
attended,  he  was,  according  to  his  own  intimation, 
rather  a  learner  than  an  actor.  His  previous  experi- 
ence in  political  life,  obliging  him  to  spend  so  much 
time  on  the  laws  of  a  single  state,  while  it  undoubt- 


LIFE    OF    JUDGE    SMITH.  51 

edly  sharpened  his  faculties,  had  yet  prevented  his 
attending,  as  he  otherwise  might,  to  the  national 
government,  and  taking  those  large  views,  which 
should  direct  the  legislation  of  a  great  people.  In 
matters  of  a  more  limited  and  private  character,  he 
acted  with  great  spirit  and  discretion  ;  as,  for  exam- 
ple, in  the  case  of  the  invalid  pensioners.  "  It  gave 
me  pain,"  he  said  to  a  member  of  the  legislature,  "  to 
learn  that  after  the  public  (you  will  excuse  me,  but  I 
mean  the  former  legislatures  of  New  Hampshire,)  had 
practised  sharping  on  the  poor  invalids,  by  compelling 
them  to  receive  their  depreciated  paper,  that  these 
unfortunate  souls  should  have  been  imposed  upon  by 
that  rascally  tribe  of  speculators  and  sharpers,  who, 
like  their  master,  travel  up  and  down  through  the 
country,  '  seeking  whom  they  may  devour.'  By  ex- 
amining the  papers  which  I  enclose,  (and  which  may 
be  authenticated  if  need  require,)  you  will  perceive 
how  successful  W.  has  been  in  this  speculation. 
You  are  not  unacquainted,  I  suppose,  that  congress, 
at  their  second  session,  made  provision  for  the  pay- 
ment of  the  arrears  of  pension,  (meaning  what  was 
due  till  4th  March,  1789,)  in  register  certificates,  to 
be  issued  at  the  treasury  of  the  United  States ;  and, 
I  dare  say,  know  that  these  certificates  are  worth 
more  than  twenty  shillings  on  the  pound.  If  the 
deceit  practised  on  these  pensioners,  in  the  instances 
alluded  to,  can  be  proved,  and  they  should  think  it 
advisable  to  prosecute  W.,  I  shall  most  cheerfully 
procure  any  evidence  that  may  be  necessary  at  the 
treasury.  I  never  feel  so  confident  that  I  am  in  the 
way  of  my  duty,  as  when  I  am  employed  in  detecting 


52  LIFE    OF    JUDGE    SMITH. 

and  punishing  villany,  especially  when  an  honest, 
simple  person  is  the  object  of  that  villany." 

In  matters  of  great  national  interest  it  may  be 
questioned  whether  Mr.  Smith  was  qualified  to  act 
with  the  same  discretion.  He  examined  them  from 
too  low  a  point,  and  came  to  conclusions  which  his 
riper  judgment  could  hardly  approve. 

"  Some  people,"  he  said,  in  a  letter  to  Governor 
Bartlett,  April  6,  1792,  "  act  upon  a  scale  too  large 
for  me ;  they  talk  much  of  the  good  of  the  whole." 

"I  asked  Mr.  John  Langdon,  if  he  thought 

New  Hampshire  would  prove  a  debtor  to  the  Union 
on  just  settlement."  "  No."  "  Then  upon  the 
principles  of  these  two  assumptions,  as  contemplated 
by  the  secretary  of  the  treasury,  will  we  not  be  pay- 
ing seven  or  eight  hundred  thousand  dollars  of  the 
debt  of  some  other  state  ?  "  He  replies,  that  "  It  is 
a  great  national  measure !  —  that  New  Hampshire 
does  not  contribute  her  proportion  of  the  public  rev- 
enue." "  I  write  this  in  the  most  perfect  confidence. 
It  does  not  become  me  to  lay  claim  to  more  know- 
ledge or  patriotism  (I  mean  fidelity  to  my  state,)  than 
other  gentlemen  possess." 

Hamilton's  measure  for  the  assumption  of  the  state 
debts  had  been  adopted  before  Mr.  Smith  was  a  mem- 
ber of  the  house.  But  he  was  vehemently  opposed  to 
it ;  and  the  following  extract  from  a  letter  to  Gov.  Bart- 
lett, Dec.  24,  1791,  in  respect  to  a  spirited  memorial 
on  the  subject  from  the  legislature  of  New  Hampshire, 
may  serve  as  a  specimen  of  his  mode  of  reasoning  at 
that  time,  "  It  was  undoubtedly  reasonable  that  the 
claims  of  the  several  states,  for  services  and  expendi- 


LIFE    OF    JUDGE    SMITH.  53 

tures  in  the  war,  should  be  adjusted  on  principles  of 
equality,  in  order  that  the  delinquent  states  should  be 
compelled  to  pay,  as  well  as  the  creditor  states  be  en- 
titled to  receive,  the  balances  respectively  due.  The 
idea  of  assuming,  or,  which  is  the  same  thing,  paying 
balances,  before  the  accounts  are  adjusted,  is  alto- 
gether new.  'T  is  uncertain  ground  to  go  upon, 
and  it  would  be  little  less  than  a  miracle,  if  the  result 
of  the  final  settlement  of  accounts  should  justify  this 
measure.  If  the  assumption  was  intended  to  give 
relief  to  the  states  from  the  burthen  of  their  debts 
contracted  during  the  war,  it  should  have  gone  fur- 
ther, and  the  whole  state  debts  of  this  description 
should  have  been  assumed.  If  it  was  intended  only 
as  an  advance  payment  to  the  states,  then  the  debts 
only  of  those  states  to  whom  balances  will  probably 
be  found  due,  should  have  been  assumed.  Congress 
never  could  have  been  influenced  by  the  first  of  these 
motives  in  assuming  two  hundred  thousand  dollars 
from  Delaware,  for  they  owed  none  ;  nor  by  the  se- 
cond of  these  principles,  in  assuming  twenty-two  hun- 
dred thousand  dollars  from  Pennsylvania ;  for  it  seems 
granted,  on  all  hands,  that  they  are  a  debtor  state. 

"  I  have  puzzled  my  brain,  to  know  upon  what 
principles  this  business  was  conducted,  that  I  might 
have  it  in  my  power  to  point  out  the  badness  of  them, 
or  show  wherein  they  had  deviated  from  them,  if 
good  ;  for  it  is  clear  that  injustice  has  been  done. 
But,  after  the  most  painful  search  and  inquiry,  I  have 
never  yet  been  able  to  find  that  they  were  actuated 
in  managing  this  business  by  any  principles  at  all, 
unless  those  principles  which  govern  sharpers,  right 
5* 


54  LIFE     OF     JUDGE     SMITH. 

or  wrong  to  get  the  best  bargain  they  can,  may  be 
denominated  such.  It  has,  I  confess,  always  been 
matter  of  astonishment  to  me,  that  there  could  exist 
a  man  so  weak,  as  to  be  duped  by  the  states  who 
pressed  this  measure,  and  who  alone  were  to  be  gain- 
ers by  it.  Having  troubled  you  with  my  sentiments 
on  this  subject,  which  I  believe  are  such  as  generally 
prevailed  with  the  legislature  in  framing  the  memo- 
rial referred  to,  I  would  take  the  liberty  to  observe 
that  the  idea  of  rescinding  the  act  assuming  the  state 
debt  is  altogether  inadmissible,  and  the  thing  wholly 
impracticable  ;  as  the  rights  of  individuals  have  be- 
come blended  with  public  measures  and  must  be  held 
sacred." 

These  remarks  should  undoubtedly  have  weight 
as  applied  to  particular  provisions '  of  the  measure, 
which  may  have  been  introduced  only  to  secure  the 
support  of  states  that  would  otherwise  have  prevented 
its  passage  ;  but  they  do  not  even  glance  at  the  broad 
principles  which  lay  at  the  foundation  of  Hamilton's 
policy,  and  which  prove  the  greatness  of  his  genius, 
and  the  profound,  far-reaching  wisdom  of  his  public 
conduct.  The  union  was  then  little  more  than  a 
political  form.  It  had  not  been  established  by  the 
happy  experience  of  many  years,  and  strengthened  by 
the  affections  of  the  people.  The  constitution,  which 
was  a  compromise  of  local  interests,  and  adopted  by 
a  small  majority  as  the  best  that  could  be  had,  was 
not  hailed  with  anything  like  a  general  enthusiasm, 


1  Some  of  these  provisions  fell  with  peculiar  severity  on  the  state  of 
New  Hampshire. 


LIFE     OF     JUDGE     SMITH.  55 

It  was  looked  upon  by  its  ablest  supporters  only  as 
an  experiment.  There  was  no  strong  attachment  to 
it ;  and,  for  some  time  after  it  was  adopted,  among 
the  representatives  of  these  several  independent  states, 
the  feelings  of  national  pride  and  honor,  through 
which  they  were  to  be  bound  together  as  members  of 
a  great  national  confederacy,  hardly  had  an  existence, 
while  local  jealousies  were  even  stronger  than  at  the 
present  day.  The  sentiment  of  loyalty  to  the  parent 
country,  which  had  been  weakened  by  our  whole 
experience  as  colonists,  and  fatally  severed  by  the 
revolution,  had  as  yet  no  new  object  to  which  it 
might  attach  itself.  That  nameless  influence,  which 
binds  a  people  to  their  country  ;  the  associations, 
which  through  a  thousand  years  have  been  cement- 
ing their  affections  to  their  government  as  by  the 
blood  of  their  fathers,  and  uniting  them  in  one  by 
the  great  achievements  and  great  names,  which  have 
come  down  as  their  common  inheritance,  had  no  ex- 
istence here.  The  common  dangers  which  allied  the 
colonies  during  the  war,  had  given  place  to  conflict- 
ing interests,  and  except  the  name  of  Washington, 
there  was  nothing  which  had  enough  of  a  central, 
gravitating  power,  to  draw  towards  a  common  point 
the  diverging  affections  of  the  people,  and  to  serve 
as  a  nucleus,  around  which  the  associations  of  na- 
tional honor  and  respect  might  gather.  Washing- 
ton's influence  was  soon  to  pass  away.  And  without 
some  strong  central  and  centralizing  power,  the  con- 
federacy must  soon  have  split  into  fragments.  In 
this  point  of  view,  it  is  impossible  to  over-estimate 
the  practical  and  far-reaching  wisdom  of  Hamilton's 


56  LIFE     OF     JTJDGE     SMITH. 

first  great  measure,  the  assumption  of  the  state  debts. 
As  a  financial  measure,  (and,  if  proposed  now,  it 
would  be  viewed  only  as  such,)  it  may  or  may  not 
have  been  expedient.  This  was  only  a  secondary 
consideration.  In  its  more  extended  bearings,  as- 
suming as  it  did  on  the  part  of  the  general  govern- 
ment, a  national  guardianship,  and  serving  thus  to 
bind  into  one  body  these  different  and  otherwise 
conflicting  members,  and  give  to  them  a  national 
character,  it  answered  a  far  more  important  end  than 
the  immediate  purpose  for  which  it  was  designed. 

The  great  measure  of  the  first  session  of  the  second 
congress  was  a  bill  to  increase  the  army  for  the  pro- 
tection of  our  frontiers.  Mr.  Smith  voted  steadily 
against  it.  Some  remarks  on  this  subject  we  have 
already  quoted.  The  following  extracts  from  a  letter 
to  his  brother,  John  Smith,  March,  1792,  relate  to 
the  same  subject. 

"  The  annual  expense  according  to  calculation 
(and  experience  always  shows  that  calculations  are 
too  small,)  will  exceed  a  million  of  dollars,  and  all 
this  to  gratify  a  parcel  of  fellows,  who  do  not  care 
whether  the  country  sinks  or  swims,  provided  they 
can  make  their  own  fortunes.  Land-jobbers  and  a  set 
of  rascals  on  the  frontiers,  who  are  interested  in  kicking 
up  a  dust,  are  the  cause  of  the  war.  I  have  uniformly 
voted  against  this  standing  army,  not  that  I  apprehend 
any  danger  to  our  liberties  from  it,  but  merely  because 
I  do  not  like  the  expense.  I  dare  say  I  am  thought 
a  very  illiberal  fellow  ;  —  a  term  which  is  here  applied 
to  every  man  who  votes  against  large  grants,  sala- 
ries, &c.  I  would  not  be  understood  as  speaking 


LIFE     OF     JUDGE     SMITH.  57 

against  the  powers  that  be  ;  though  I  do  not  believe 
they  are  ordained  of  God.  The  government  is,  I 
think,  in  the  main  good.  I  detest  faction.  There 
are  here  some  very  rich  men,  who  certainly  do  not 
sympathize  with  their  constituents.  They  affect  to 
consider  a  million  of  dollars  as  nothing  !  They  talk 
of  raising  money  by  direct  taxation,  as  a  measure 
highly  expedient.  As  long  as  the  money  to  pay  the 
charges  of  government  is  raised  by  the  indirect  and 
imperceptible  mode  of  impost,  excise  and  duties,  the 
people  will  not  murmur  at  the  high  salaries,  pensions 
and  profuse  grants  ;  but  the  moment  recourse  is  had 
to  dry,  hard  taxation,  the  spirit  of  inquiry  will  be 
roused,  and  the  expenditures  will  be  minutely  investi- 
gated. I  never  wish  to  see  that  day  arrive.  I  dare 
say  all  this  political  stuff  will  appear  to  you  extremely 
insipid,  now  that  you  have  it  in  your  power  to  em- 
ploy your  leisure  moments  in  domestic  felicity. 
Blessed  change,  from  the  company  of  drunken  randys, 
&c.,  to  the  agreeable  society  and  charming  conversa- 
tion of  your  lovely  wife  !  " 

Mr.  Smith's  political  opinions,  and  even  the  prin- 
ciples on  which  they  might  rest,  were  not  yet  estab- 
lished. Indeed,  the  public  opinion  of  the  country 
was  yet  unorganized  and  unformed,  without  fixed 
rules  or  principles  of  political  action.  From  this 
heaving  mass  of  almost  chaotic  opinions,  at  first 
hardly  perceptibly,  but  at  length  through  excitements 
and  commotions  that  shook  the  whole  fabric  of  so- 
ciety, two  great  political  parties  were  rising  into 
shape,  and  arraying  themselves  against  each  other. 
Hamilton  and  Jefferson  were  the  leaders  in  this 


58  LIFE    OF    JUDGE    SMITH. 

movement  ;  but  it  arose  from  causes  deeper  than  the 
personal  feelings  or  opinions  of  the  two  secretaries. 
They  were  but  the  representatives  of  two  great  sys- 
tems of  policy,  springing  out  of  our  condition  as  a 
nation ;  and  however  these  systems  may  be  affected 
by  temporary  measures  respecting  war  or  peace, 
slavery  or  commerce,  or  particular  electioneering  or- 
ganizations, growing  out  of  personal  or  local  inter- 
ests, they  must  still  continue  to  be  the  principles  of 
political  division,  throughout  the  country.  There  is 
a  constant  tendency  to  foment  ill  feelings  on  the 
score  of  opposite  and  warring  local  institutions,  and 
if  it  should  go  on  without  interruption,  it  must  ne- 
cessarily lead  to  entire  alienation  and  hostility  be- 
tween the  two  large  sections  of  the  country.  But 
this  other  movement,  by  introducing  new  subjects  of 
controversy,  and  dividing  the  country  on  other  than 
local  grounds,  absorbed  to  itself  passions,  which  if 
wholly  spent  in  local  contests,  would  long  since  have 
put  an  end  to  our  national  existence.  Thus,  when, 
on  the  assumption  of  the  state  debts  in  1790,  New- 
Hampshire  and  Virginia  were  arrayed  against  Massa- 
chusetts and  South  Carolina,  something  was  done  to 
prevent  the  organization  of  the  North  and  the  South 
against  each  other,  and  to  allay  the  bitterness  of  local 
jealousies. 

The  great  division  into  parties  was  not  fairly  per- 
ceptible, until  the  first  session  of  the  second  con- 
gress. Towards  its  close,  the  beginnings  of  such  an 
organization  were  manifesting  themselves.  In  a  let- 
ter to  his  brother,  20th  April,  1792,  Mr.  Smith  says, 
"  Everything  now  [at  the  latter  end  of  the  session,] 


LIFE    OF    JUDGE    SMITH.  59 

grows  languid,  dull,  and  heavy ;  and  there  seems  to 
be  nothing  stirring  amongst  us,  save  a  little  nature, 
which  I  believe  will  hold  out  to  the  last.  There  are 
two  parties  here.  I  belong  to  neither.  I  mean  the 
friends  and  enemies  of  the  funding  system.  I  do 
not  find  that  harmony  in  the  public  councils  which  I 
expected.  Those  who  are  interested  in  the  funds, 
stock,  bank,  &c.,  support  every  measure  of  the  se- 
cretary of  the  treasury,  whilst  those  who  are  out  of 
the  funds  (meaning  the  Virginians,  &c.  &c.  &.c.) 
oppose  every  measure  of  his,  however  wise  and 
good.  The  good  of  the  whole  is  not  a  primary  ob- 
ject with  either  of  these  two  classes.  The  one 
zealously  contends  for  measures  which  will  tend  to 
increase  the  public  credit,  because  at  the  same  time 
he  advances  his  own  private  property  ;  whilst  the 
other  would  be  willing,  like  Samson,  to  pull  down 
the  mighty  fabric  of  public  credit  and  confidence, 
because  it  would  overwhelm  his  enemies,  (the  stock- 
holders, &c.)  though  he  himself  should  be  buried  in 
the  ruins." 

The  next  session  of  congress  (1792-3)  was 
passed  without  any  very  important  public  measures ; 
but  was  marked  by  an  increased  irritation  of  party 
feeling,  and  by  the  beginning  of  the  difficulties  with 
the  French  republic.  Mr.  Smith,  whose  health  was 
most  of  the  time  poor,  continued  to  look  carefully 
into  the  progress  of  events,  and  applied  himself  dil- 
igently to  reading,  being  still,  less  an  actor  than  one 
preparing  himself  for  future  action.  In  the  mean 
time  he  had  been  reflected,  and  was  evidently  much 
gratified  by  the  result.  In  a  letter  to  his  brother, 


60  LIFE    OF   JUDGE    SMITH. 

John,  November  15,  1792,  he  says,  "  I  have  seen 
the  event  of  the  voting  for  representatives  to  con- 
gress, from  New  Hampshire,  and  am  disappointed 
and  exceedingly  gratified.  I  find  I  had  all  the  votes 
of  Hillsborough,  Cheshire,  and  Grafton,  and  a  ma- 
jority in  each  of  the  other  counties.  I  wish  my 
friends  may  know  how  much  I  feel  myself  obliged, 
by  this  flattering  proof  of  their  attachment,  and  the 
disposition  I  feel  to  seize  every  opportunity  of  testi- 
fying my  gratitude.  I  do  not  think  that  I  needed 
any  additional  motives  to  stimulate  me  to  fidelity, 
and  the  most  strenuous  exertions  to  promote  the  in- 
terests of  the  state.  If  I  did,  this  unexpected  proof 
of  public  confidence  would  certainly  operate  power- 
fully." 

The  following  extracts  from  letters  will  sufficiently 
show  Mr.  Smith's  feelings,  during  the  first  session  of 
the  third  congress. 

To  Samuel  Smith,  February,  1793.  "  I  approve 
of  your  passion  for  Miss  G. ;  prosecute  it  with  ar- 
dor. I  am  under  the  influence  of  a  similar  passion 
—  a  hopeless  one  too.  I  don't  mean  that  my  fair 
one  frowns  on  me  ;  in  that  case  I  should  very  soon 
cease  to  love  her.  But  prudence  dictates  to  me  the 
impropriety  of  such  an  attachment,  and  probably  the 
same  prudence  suggests  the  same  thing  to  her.  A 
Philadelphia  belle  would  make  a  strange  wife  for  a 
poor  man  in  New  Hampshire.  What  a  strange  set 
of  creatures  we  are  !  It  seems  to  me  now  that  I 
never  sincerely  loved  before.  God  grant  that  time 
and  absence  may  have  their  usual  effects. 

"  I  was  determined  to  purchase  no  more  books, 


LIFE    OF   JUDGE    SMITH.  61 

yet  I  have  expended  sixty  or  seventy  dollars  in  that 
way.  This  rage  for  books  will  ruin  me  ;  and  that 
rage  for  building  mills,  barns,  dams,  pearl-ash 
houses  and  castles,  will,  I  fear,  prove  the  destruction 
of  you." 

[To  his  brother  Samuel,  28th  January,  1794,  he 
writes :  —  "  We  are  now  debating  the  propositions 
made  by  Mr.  Madison,  for  laying  additional  duties 
on  the  manufactures  of  Great  Britain.  If  these 
should  obtain,  it  will  still  more  favor  the  American 
manufacturer.  I  shall  oppose  these  resolutions,  be- 
cause I  conceive  they  will  upon  the  whole  be  inju- 
rious. If  I  consulted  no  interest  but  yours,  I  believe 
I  should  favor  the  resolutions!?' 

To  Robert  Fletcher,  Esq.,  12th  February,  1794, 
he  says  :  "  I  am  sorry  that  French  politics  gain 
ground  with  you.  They  are  my  utter  abhorrence. 
I  almost  hate  the  name  of  a  Frenchman.  They  have 
opened  some  leaves  in  the  volume  of  human  nature, 
that  I  never  believed  were  in  the  book.  They  have 
done  the  cause  of  liberty  an  irreparable  injury.  I 
do  not  wish  them  success.  Their  principles  are  hos- 
tile to  all  government,  even  to  ours,  which  is  cer- 
tainly the  best.  C  You  will  have  seen  Madison's  pro- 
positions to  regulate"  commerce  ;  calculated  to  stir  up 
a  war  between  Great  Britain  and  us.  I  attribute 
these  propositions  to  French  influence.  I  do  not 
mean  that  the  advocates  of  these  measures  are  bribed 
by  Citizen  Genet  ;  but  I  consider  them  as  resulting 
from  that  childish  and  nonsensical  attachment  they 
appear  to  have  for  Frenchmen  and  French  politics, 
which  leads  them  to  put  in  hazard  the  true  interests 
6 


62  LIFE    OF    JUDGE    SMITH. 

of  this  country,  to  gratify  their  resentment  against 
Great  BritairiTl  It  is  now  certain,  beyond  all  possi- 
bility of  dotfbt,  that  Genet,  in  his  constant  and  un- 
remitted  endeavors  to  plunge  this  country  into  the 
war,  was  only  pursuing  the  instructions  he  received 
from  his  government.  Though  this  may  in  some 
measure  palliate  his  abominable  lies,  duplicity,  &c., 
yet  it  ought  to  make  us  hate  and  detest  his  nation. 
On  these  resolutions,  your  brother  Dexter '  made  a 
very  eloquent  and  sensible  speech,  which  was  uni- 
versally applauded  ;  and  his  character  already  stands 
high.  There  is  no  danger  of  his  sinking  in  public 
estimation,  for  his  talents  are  solid,  and  his  integrity 
and  honesty  inflexible." 

[To  Samuel  Smith,  14th  April,  1794,  he  writes  : 
"  We  are  now  debating  the  propriety  of  withdraw- 
ing ourselves  from  any  commercial  intercourse  with 
Great  Britain.  I  think  it  will  pass  the  house,  but 
fail,  at  least  in  its  present  shape,  at  the  senate.  We 
are  in  a  most  honible  passion  !  How  we  should 
act,  provided  there  was  any  fighting  in  the  case,  I 
can't  say,  but  certain  it  is  that  we  scold  most  cour- 
ageously. "_J 

In  a  letter  to  William  Plummer,  dated  8th  May, 
1794,  he  says  :  "  My  dear  friend,  your  letter  of  the 
28th  April,  I  received  by  the  last  mail.  It  could  not 
fail  of  giving  me  pleasure,  as  it  contained  assurances 
that  my  political  conduct  has  your  approbation,  as 
well  as  that  of  '  the  more  considerate  and  well-in- 
formed '  among  the  people  at  large.  !  I  have  been, 

1  Hon.  Samuel  Dexter,  of  Massachusetts. 


LIFE    OF    JUDGE    SMITH.  63 

and  I  believe  always  shall  be,  among  the  number  of 
those  who  deprecate  war.  Those  who  have,  in  the 
course  of  the  session,  advocated  Madison's  resolu- 
tions, sequestration,  the  bill  to  suspend  the  trade  and 
intercourse  between  the  United  States  and  Great 
Britain,  and  other  measures  of  a  similar  nature,  make 
the  same  profession  ;  at  least  most  of  them  do  so. 
I  have  no  doubt  but  that  some  of  them  are  honest  ; 
some  of  them  are  notT}  ^Taylor  and  Monroe,  the  two 
Virginia  senators,  on  Monday,  moved  in  the  senate, 
for  leave  to  bring  in  a  bill  to  suspend  the  execution 
of  the  fourth  article  of  the  treaty  of  peace,  that  is,  to 
put  a  stop  to  the  collection  of  British  debts.  This 
leads  us  strongly  to  suspect,  that  their  hostility  and 
rage  against  Great  Britain,  is  not  so  much  the  pure 
fire  of  patriotism,  (which  they  pretend,)  as  it  is  the 
flame  of  self-interest.  In  this  motion  they  were  most 
shamefully  defeated,  and,  upon  a  division,  stood  alone. 
Their  friends  thought  the  measure  too  glaring,  and 
deserted  them,  leaving  the  senate,  when  the  question 
was  taken.  I  know  it  is  common  for  parties  to  charge 
each  other  with  bad  intentions,  sometimes,  no  doubt, 
without  any  foundation.)  Both  may  mean  honest, 
but  I  believe  that  is  not  the  case  at  present.  They 
charge  us  with  monarchical  and  aristocratical  princi- 
ples ;  with  designs  to  change  the  constitution,  and 
subject  the  people  to  slavery  ;  with  being  the  agents 
of  Great  Britain  ;  under  British  influence  ;  friends 
of  the  funding  system,  and  in  favor  of  a  great  na- 
tional debt.  Now  this  is  so  impudent  a  calumny, 
and  so  without  the  shadow  of  probability,  that  I  do 
not  believe  that  they  believe  a  syllable  of  the  matter 


64  LIFE    OF   JUDGE    SMITH. 

themselves  ;  and  yet  in  this  ignorant  and  stupid 
place,  there  are  not  wanting  persons  who  are  trem- 
bling for  their  liberties,  and  really  alarmed  for  their 
privileges.  The  democratic  societies  have  under- 
taken the  guardianship  of  the  rights  of  the  people. 
They  are  ever  and  anon  blowing  the  trump  of  fac- 
tion, and  warning  the  people  of  their  danger  ;  puff- 
ing the  members  of  congress  who  are  for  sequestering 
British  debts,  and  widening,  instead  of  healing,  the 
breach  between  Great  Britain  and  us.  Need  I  add, 
that  this  renders  our  situation  uncomfortable  —  to 
me  it  is  hateful.  This  zealous  attachment  to  the 
rights  of  the  people,  this  bellowing  against  mon- 
archy, aristocracy,  national  debt,  &,c.,  this  scorching 
fire  of  patriotism  would  be  suspected,  with  us  in 
New  Hampshire,  but  here  it  answers  a  good  pur- 
pose." 

Mr.  Smith  now  felt  more  at  home,  and  enjoyed 
himself  more  than  at  any  previous  session.  "  On 
the  9th  of  June,"  says  Marshall,  "  this  active  and 
stormy  session  was  closed,  by  an  adjournment  to  the 
first  Monday  of  the  succeeding  November."  The 
next  session  was  to  have  commenced  on  the  3d 
of  November,  but  there  was  not  a  quorum  till  the 
18th.  Party  divisions  had  become  more  fixed, 
and  entered  more  deeply  into  social  and  personal 
relations  ;  motives,  as  well  as  measures,  were  se- 
verely commented  upon  ;  and  if  less  was  done  than 
at  the  previous  session,  it  was  only  because  the  tem- 
pestuous strife  had  subsided  into  a  sullen  calm,  while 
both  parties  awaited  with  anxious  interest  the  result 
of  the  mission  to  England. 


LIFE    OF    JUDGE    SMITH.  65 

The  following  extracts  will  show  what  were  the 
feelings  of  that  day. 

To  Samuel  Smith,  20th  November,  1794.  «  I  in- 
close the  president's  speech.  It  is  very  popular  with 
the  friends  to  government  ;  we  consider  what  he 
says  of  self-created  societies,  and  combinations,  dis- 
regarding truth,  &c.,  stirring  up  insurrections,  &c., 
as  too  applicable  to  democratic  clubs,  &c.,  to  admit 
of  any  mistake  as  to  the  application  of  it ;  we  smile, 
and  they  pout.  They  feel  it.  Let  their  mortifica- 
tion be  increased  tenfold." 

To  the  same,  29th  November,  1794.  "  We  have 
been  engaged  the  whole  week  in  framing  an  answer 
to  the  president's  speech.  The  persons  with  whom 
I  act  wished  to  express  an  opinion  that  the  demo- 
cratic clubs  had  fomented  and  stirred  up  the  insur- 
rection, in  the  western  counties  of  Pennsylvania. 
This  was  opposed  by  our  southern  brethren,  who  feel 
a  wonderful  sympathy  with  these  inflammatory  clubs. 
On  the  question,  which  we  considered  as  the  main 
one,  the  house  was  equally  divided,  and  the  speaker, 
who  belongs  to  a  club  of  democrats,  gave  the  casting 
vote  against  us,  so  that  our  answer  is  chips  and  por- 
ridge. I  feel  provoked.  What  a  mercy  it  is  that  I 
have  not  your  troubles  to  add  to  mine,  and  that  you 
have  not  mine  to  add  to  yours  !  " 

To  John  Smith,  6th  December,  1794.  "  An  ac- 
count of  congressional  proceedings  would  give  you 
no  pleasure.  Except  the  attack  on  democratic  clubs, 
we  have  scarce  had  any  debate  and  very  little  busi- 
ness. We  are  lying  on  our  oars  till  we  hear  from 
Mr.  Jay.  If  his  mission  is  favorable,  we  shall  do 
very  well  ;  if  not,  the  devil  will  be  to  pay." 


66  LIFE    OF    JUDGE    SMITH. 

Mr.  Smith's  interest  in  public  affairs  may  be  seen 
in  the  following  extracts,  relating  to  the  election  of 
United  States'  senator  from  New  Hampshire.  His 
temperament  was  one  of  the  most  hopeful,  and  hardly 
in  all  his  confidential  papers,  have  I  found  anything 
like  despondency  or  gloom.  What  follows  here,  as 
in  many  other  parts  of  this  memoir,  is  of  course  to  be 
taken  as  a  picture  of  the  writer's  feelings  at  the  time, 
and  not  as  an  impartial  estimate  of  character. 

To  William  Gordon,  Esq.,  17th  December,  1794. 
"It  is  quite  natural,  too,  that  your  detected  villains,  who 
dread  the  whip  of  the  law,  should  contemplate  with 
satisfaction  the  annihilation  of  order  and  government ; 
but  that  a  man  circumstanced  as  Mr.  L.  is,  should 
lend  his  aid  to  the  enemies  of  the  rights  of  property, 
to  the  enemies  of  order  and  good  government,  the 
enemies  of  the  peace,  and,  in  my  opinion,  the  inde- 
pendence of  this  country,  these  things  surprise  me. 
Perhaps  Mr.  L.  does  not  intend  any  such  thing.  A 
man  is  in  a  situation  not  much  to  be  envied,  when 
his  friends  are  under  the  necessity  of  justifying  his 
heart  at  the  expense  of  his  head.  Besides,  in  the 
present  case,  it  would  be  peculiarly  unfortunate  ;  be- 
cause friend  L.  can  suffer  very  little  deduction  there, 
without  being  reduced  to  a  size  which  would  baffle 
the  naked  eye,  and  even  set  at  defiance  all  the  mi- 
croscopes that  have  yet  been  invented.  Our  affairs 
are,  at  present,  so  critically  circumstanced,  that  a 
single  vote  in  the  senate  is  worth  perhaps  as  much  as 
the  peace,  prosperity,  and  happiness  of  our  country. 
I  am  mortified  that  New  Hampshire  should  be  divided 
as  they  are  in  the  senate,  on  all  occasions  where  na- 


LIFE    OF    JUDGE    SMITH.  67 

tional  questions  are  involved.  Undoubtedly  every 
public  man  should  act  his  opinions,  whatever  they 
may  be  ;  but  certainly  I  would  not  choose  an  agent 
who  should  do  the  things  I  would  not.  Besides,  I 
can  hardly  muster  up  charity  enough,  with  all  I  can 
borrow  from  my  friends,  to  persuade  myself  that  these 
things  are  the  effects  of  conviction.  He  has  been 
flattered  into  a  belief,  that  if  he  will  wear  the  south- 
ern livery,  he  shall  be  made  the  second  man,  as  it 
were.  Now  though  this  flattery  is  gross,  yet  that 
is  no  reason  why  it  should  not  be  greedily  devoured. 
Flattery,  unlike  other  food,  seems  to  be  swallowed  the 
more  greedily,  the  coarser  it  is.  But  I  am  running 
into  reflections  which  always  make  me  gloomy.  This 
same  government  of  ours  is  built  on  the  pillars  of 
public  virtue  and  public  opinion,  say  our  wise  men. 
The  wise  and  the  good,  when  united,  are  still  a 
minority,  I  fear.  When  desertions  take  place,  the 
case  becomes  desperate,  and  in  such  a  case,  true  wis- 
dom consists,  not  in  attempting  any  longer  to  support 
the  tottering  fabric,  but  in  running  away,  as  far  as 
you  can,  so  as  not  to  be  injured  by  its  fall." 

To  R.  Fletcher,  3d  January,  1795.  "I  am  anx- 
ious to  hear  who  is  chosen  senator.  The  lot  is  by 
this  time  cast.  I  am  afraid  '  the  Lord  has  had  no- 
thing to  do  with  the  disposing  thereof.'  Supposing 
L.  to  be  the  man,  I  am  beginning  to  reconcile  myself 
to  it.  If  he  is  not  elected,  he  will,  I  fear,  be  soured, 
and  rear  up  an  anti-federal  party  in  the  state  ;  set  up 
democratic  clubs,  and  poison  the  pure  principles  of 
our  virtuous  citizens.  Let  our  people  fall  into  the 
hands  of  the  devil,  but  let  them  not  fall  into  the 


68  LIFE    OF    JUDGE    SMITH. 

hands  of  these  men ;  famine,  the  plague,  and  pesti- 
lence are  nothing  to  it.  By  the  way,  we  are  all 
hugely  pleased  with  parson  Osgood's  Thanksgiving 
sermon ;  we  extol  him  to  the  third  heaven,  and 
swear  (it  is  in  a  good  cause  you  know)  that  he  was 
inspired !  If  the  virtuous  members  of  congress 
(meaning  those  of  our  party)  had  the  power  to  confer 
degrees,  he  would  instantly  be  daubed  over  with 
titles.  We  think  he  as  richly  deserves  it,  as  ever 
King  William,  in  Corporal  Trim's  opinion,  did  a 
crown.  It  is  proposed  to  print  an  edition  in  this 
city,  for  the  use  of  our  brethren  at  the  southward. 
We  are  afraid,  if  we  do  not  alter  the  title-page,  it  will 
be  a  sealed  book.  But,  what  is  very  unusual,  it  has 
been  published  entire  in  a  newspaper  in  this  city, 
and,  I  believe,  read  by  many  people  who  were  never, 
in  the  whole  course  of  their  lives,  in  the  inside  of  a 
church.  I  am  charmed  with  your  picture  of  a  family 
party  at  Christmas.  It  must  be  the  most  delightful 
thing  in  the  world.  Tell  Mrs.  F.  that  I  should  have 
been  very  happy  to  have  made  one  of  your  little  so- 
ciety, and  that  I  am  confident  she  enjoyed  far  more 
pleasure,  surrounded  by  her  children  and  friends, 
than  Mrs.  Dexter,  at  Mr.  Bingham's,  Mr.  Morris's,  or 
even  the  President's  sumptuous  dinner.  I  was  sin- 
gularly happy  on  that  day  myself;  dined  with  a  num- 
ber of  my  friends  at  Mr.  Wolcott's,  (who,  by  the 
way,  will  be  secretary  of  the  treasury,  in  the  room  of 
Col.  Hamilton,)  and  spent  the  evening  in  company 
with  a  divine  woman  I  have  lately  become  ac- 
quainted with,  and  who  is  all  that  woman  can  or 
ought  to  be  ;  but,  heigh  ho  !  she  is  as  good  as  mar- 


LIFE    OF    JUDGE    SMITH.  69 

ried.  I  am  glad  I  was  informed  of  that  circumstance, 
else  I  should  have  been  over  head  and  ears  in  love. 
Informed  of  my  danger,  I  find  it  difficult  to  restrain 
my  ardent  affections.  I  am  glad  to  find  that  I  am 
not  dried  up  and  congealed,  but  that  my  heart  is  as 
susceptible  as  ever.  I  had  rather  be  a  man,  and  feel 
as  such,  even  if  I  suffer  by  it,  than  be  one  of  your 
insensible  devils." 

To  R.  Fletcher,  Esq.,  January  7th,  1795.  "  You 
wish  for  a  list  of  congressional  actions.  There  are 
but  few  entries,  and  those  few  unimportant.  I  was 
doubtful  whether  we  coilld  have  spun  out  the  time 
till  the  third  of  March ;  but,  thanks  to  some  of  our 
chattering  geniuses,  we  are  out  of  all  danger  of  a 
premature  death.  We  are  of  opinion  with  good  old 
Cato,  in  another  case,  that  we  ought  to  draw  our  term 
of  service  out,  and  spin  it  to  the  last ;  and  that  one 
year  of  congressional  life  is  better  than  a  whole  eter- 
nity at  home.  I  will  enclose  some  newspapers,  if  I 
can  pick  them  up  before  I  seal  this  letter,  by  which 
you  will  see  that  we  have  been  much  engaged  in 
amending  the  law  for  the  naturalization  of  aliens, 
particularly  a  motion  made  by  Mr.  Giles,  to  make 
it  necessary  for  an  alien  nobleman,  previous  to  his 
becoming  a  citizen,  to  renounce  his  title.  This 
naturalization  is  very  warm  work. 

"  Giles's  motion  prevailed.  It  was  made,  I  pre- 
sume, with  a  view  to  cast  odium  on  the  New  England 
aristocrats,  who,  it  was  foreseen,  would  vote  against 
the  motion,  as  altogether  frivolous  and  ridiculous.  I 
dare  swear  it  will  occasion  a  great  bustle,  and  that 
the  Independent  Chronicle,  (that  is  a  paper  entirely 


70  LIFE     OF     JUDGE     SMITH. 

devoted  to  a  party,)  will  teem  with  abuse.  Here 's 
a  fine  set  of  fellows  for  you  !  for  introducing  nobility 
from  Europe  !  Don't  you  tremble,  my  friend,  for 
the  liberties  of  your  poor  country  ?  Depend  upon  it, 
we  are  in  great  danger  from  the  introduction  of  mon- 
archy and  aristocracy.  We  shall  certainly  be  tricked 
out  of  our  liberties  if  we  are  not  very  jealous  !  Here 
you  see  what  a  narrow  escape  we  have  had  ;  even 
Madison,  the  watchful  guardian  of  American  liber- 
ties, the  vigilant  Madison,  slept.  He  brought  in  the 
bill,  and  had  omitted  this  clause.  But  the  saviours 
of  our  country  must  come  from  the  south  —  his  col- 
league, Giles,  has  the  consolation  to  reflect  that  he 
has  rescued  us  from  the  most  imminent  danger  !  Let 
the  praises  of  the  geese  who  saved  Rome,  no  longer 
engross  the  public  approbation  ;  certainly,  in  all  mo- 
desty, Giles  may  divide  the  matter  with  them.  Don't 
tell  me  there  is  no  danger ;  oh  blindness  and  stupid- 
ity !  Fools  can  fear  when  there  is  any  danger  — 
wise  men  manage  the  matter  much  better ;  they, 
honest  and  sagacious  souls,  espy  dangers  that  never 
did,  and  never  can  exist.  Did  not  Rome  produce  a 
Caesar  ?  Think  of  that !  May  not  America  do  the 
same  ?  Answer  me  that.  Who  would,  then,  place 
any  confidence  in  a  public  officer  ?  Certainly  not 
true  republicans  ;  they  know  that  the  only  way  to  be 
faithfully  served,  is  to  distrust  and  abuse  all  their  offi- 
cers. Let  monarchs  caress  and  reward  their  faith- 
ful and  trusty  friends  and  servants.  They  must  be 
strangely  ignorant  of  human  nature,  indeed  !  Our 
method  is  both  economical  and  safe  ;  first,  to  cheat 
them  out  of  their  wages,  and  then,  to  prevent  the 


LIFE     OF     JUDGE     SMITH.  71 

effect  of  their  clamor  on  the  world,  vilify  and  abuse 
their  characters.  Huzza  for  the  new  invented  max- 
ims of  government !  Pardon  me,  my  friend,  I  can 
proceed  no  further ;  I  am  so  sick  of  this  nonsense, 
which  is  daily  ringing  in  my  ears,  that  I  ardently 
long  for  the  moment  when  I  shall  bid  adieu  to  Phila- 
delphia, and  exchange  its  follies,  noise  and  nonsense, 
for  the  simplicity,  the  quiet  and  peaceful  regions  of 
New  Hampshire." 

To  Samuel  Smith,  31st  January,  1795.  "The 
time  of  our  dissolution  draws  near,  and  I,  like  other 
good  Christians,  view  its  approach  with  calmness  and 
serenity,  indeed  with  pleasure.  I  can  give  up  the 
plays,  parties  and  public  entertainments  of  the  city, 
for  the  repose  and  wholesome  atmosphere  of  the 
country,  and  make  a  good  exchange.  Not  being  a 
man  of  pleasure,  I  make  but  little  sacrifice  in  quitting 
the  gay  scenes  ;  my  brethren  here  cannot  all  say  so. 
Many  of  them  plunge  into  the  vortex  of  dissipation  ; 
they  do  not  always  escape  unhurt,  but  like  the  mari- 
ners, who  have  been  shipwrecked  in  nine  voyages, 
will  venture  on  the  tenth." 

[To  the  same,  1 1th  February,  1795.  "  There  is  now 
no  doubt  that  the  treaty  of  commerce,  &c.  is  con- 
cluded by  Mr.  Jay,  with  the  British  court ;  though  it 
has  not  arrived  in  America  yet.  The  uneasy  spirits 
who  have  used  their  endeavors  to  plunge  this  coun- 
try into  the  war  which  desolates  Europe,  have  opened 
their  foul  mouths  against  it,  though  they  do  not  even 
know  what  it  contains.  This  is  no  reason,  however, 
why  they  should  not  abuse  it,  and  they  would  act 
inconsistently  with  themselves,  if  they  did  not  shoot 


72  LIFE     OF     JUDGE     SMITH. 

arrows  in  the  dark,  and  endeavor  to  wound  the  char- 
acter and  conduct  of  those  to  whom  this  country  is 
indebted  for  the  peace  and  prosperity  we  now  enjo£^ 
The  supreme  court  of  the  United  States  has  been 
one  week  in  session.  I  have  been  pretty  constant  in 
my  attendance  there  and  in  congress,  so  that  I  have 
but  little  leisure  or  time  that  I  can  call  my  own." 

To  the  same,  25th  February,  1795.  "  Your  letter 
on  Monday  found  us  all  up  in  arms  ;  the  whole  city 
turned  topsy-turvy,  mad  with  joy.  It  was  the  day 
we  celebrate  the  president's  birth.  We  had  a  great 
deal  of  marching  and  counter-marching,  processions, 
fifing  of  cannon,  ringing  of  bells,  &c.  Everybody 
waited  on  his  highness,  to  congratulate  him  on  the 
event  of  his  growing  old.  In  the  evening  a  very 
splendid  ball  was  given  in  honor  of  the  day.  The 
president  and  lady,  the  ministry,  foreign  ambassadors, 
the  members  of  the  two  houses,  attended.  Such  a 
display  of  beauty,  dress,  &c.  my  eyes  never  beheld 
before.  If  the  president  does  not  rejoice  that  he  is 
a  year  older,  I  am  sure  he  might  be  glad  that  he  is 
one  day  further  advanced.  Monday  must  have  been 
very  fatiguing  to  him.  I  will  not  be  president,  even 
at  thirty  thousand  dollars  per  annum,  though  that 
would  be  a  fine  thing  to  keep  your  mills  a-going. 
iThe  treaty,  concluded  by  Mr.  Jay,  does  not  arrive  ; 
iTTs  said  the  vessels  intrusted  with  it  and  duplicates, 
have  been  taken  and  lost,  so  that  we  do  not  expect 
it  before  the  adjournment,  which  is  next  Tuesday. 
The  session  has  been  rather  peaceable,  it  bids  fair  to 
end  in  a  dead  calm.  I  begin  to  hope  that  our  polit- 
ical sky  will  become  more  serene.  Last  winter,  it 
was  stormy  enough,  in  all  conscience." 


LIFE     OF     JUDGE     SMITH.  73 

During  his  whole  congressional  course,  Mr.  Smith 
was,  perhaps,  more  intent  upon  becoming  a  lawyer 
than  a  statesman.  Whenever  his  other  duties  would 
allow  it,  he  constantly  attended  in  the  supreme  court 
of  the  United  States,  to  make  himself  familiar  with 
the  ablest  practice  at  the  bar,  and  the  best  judicial 
forms.  He  was  also  deeply  interested  in  the  New 
Hampshire  courts.  In  a  letter  to  his  brother  John, 
January  31,  1795,  who  was  then  in  the  legislature  of 
New  Hampshire,  he  asks,  in  reference  to  the  chief 
justice,  "  Why  did  you  not  remove  him  ?  Surely 
there  has  been  time  enough  for  experiment.  Want 
of  nerves,  (or  whatever  his  disorder  may  be,)  as 
effectually  disqualifies  him  for  the  office  he  holds,  as 
want  of  integrity  or  capacity.  If  he  and  D.  were 
both  removed,  I  do  not  believe  the  vacancies  would 
be  well  filled ;  but  the  main  thing  is,  to  have  them 
filled  with  men  who  would  do  their  duty  in  attending 
at  the  several  terms ;  for  be  assured,  it  is  of  more 
importance  that  causes  should  be  tried,  than  that 
they  should  be  well  tried."  Singularly  enough  a  let- 
ter dated  the  3d  of  February,  1795,  came  to  Mr. 
Smith,  from  the  Hon.  James  Sheafe,  one  of  the  most 
wealthy,  influential  and  respectable  men  in  New 
Hampshire,  and  Mr.  Smith's  warm  personal  friend, 
urging  him  to  use  his  influence  in  securing  the  ap- 
pointment of  this  same  gentleman  to  the  office  of 
district  judge  of  the  United  States.  Mr.  Smith's 
reply  may  be  taken  as  a  specimen  of  mild  but  manly 
independence,  such  as  cannot  be  too  strongly  recom- 
mended to  our  public  men.  "  Dear  sir  :  your  letter 
of  the  3d  February  I  received  by  the  last  mail.  Mr. 
7 


74  LIFE     OF     JUDGE     SMITH. 

P.  was  appointed  district  judge  before  your  letter 
came  to  hand.  I  congratulate  you  on  this  event,  and 
assure  you  that  I  participate  in  the  pleasure  it  must 
afford  him  and  his  friends.  You  will  not  call  my 
sincerity  in  these  professions  in  question,  when  I  add 
that  I  should  have  given  my  voice,  if  I  had  been  con- 
sulted, in  favor  of  another I  am  very  happy 

to  learn  that  Mr.  P.'s  health  is  restored  ;  it  is  the 
only  circumstance  which  has  prevented  his  talents 
from  being  eminently  useful  to  his  fellow-citizens." 

Mr.  P.'s  abilities,  legal  attainments,  and  integrity 
were  unquestioned,  but  if  Mr.  Smith's  advice  had 
been  followed,  it  would  have  been  better  for  all 
concerned.  The  public  would  not  have  been  shocked 
by  what  seemed,  in  his  conduct,  a  burlesque  upon 
the  solemn  forms  of  justice ;  his  friends  would  have 
been  spared  the  pain  of  finding  that  attributed  to 
fraud,  which  was  only  the  result  of  mental  derange- 
ment, nor  would  the  nation  have  witnessed  the  sad 
spectacle  of  its  highest  tribunal  removing  from  the 
bench,  by  impeachment,  a  worthy  man,  whose  facul- 
ties, at  the  time,  were  not  such  as  to  enable  him  to 
answer,  or  even  to  understand,  the  charges  that  were 
brought  against  him.  It  was  not  the  least  singular 
part  of  these  extraordinary  proceedings  that  he,  who 
was  the  most  active  in  removing  him,  and  who  suc- 
ceeded to  his  place,  passed  the  latter  portion  of  his 
life  under  the  same  heavy  calamity,  which  through 
his  influence  had  been  solemnly  imputed  to  his  pre- 
decessor as  a  crime ! 


CHAPTER  IV. 

1795  —  1797. 

IN    CONGRESS  JAT*S    TREATY  FISHER    AMES  

MR.  SMITH'S  MARRIAGE  —  WASHINGTON. 

THE  next  session  of  congress  was  one  of  those  criti- 
cal points  in  our  history,  which  give  a  direction  for 
years  to  the  course  of  public  events,  and  establish 
that  interpretation  of  the  constitution  on  which  the 
stability  of  the  government  depends.  Difficulties, 
which,  unless  soon  settled,  must  inevitably  have  led 
to  war,  had,  since  the  peace  of  1783^existed  be- 
tween this  country  and  Great  Britain.  ^Jn  the  spring 
of  1794,  John  Jay,  then  chief  justice  of  the  United 
States,  was  appointed  envoy  extraordinary  to  adjust 
these  difficulties.  He  arrived  in  London  the  15th 
of  June,  and  on  the  19th  of  November  had  suc- 
ceeded in  forming  with  the  British  government  a 
treaty  of  amity,  commerce,  and  navigation,  which 
was  not,  however,  received  at  the  department  of 
state  in  this  country,  till  the  7th  of  March,  1795, 
a  few  days  after  the  adjournment  of  congress.  ^(No 
pains,  as  we  have  seen  by  Mr.  Smith's  letters',  Had 


76  LIFE    OF   JUDGE    SMITH. 

been  spared  to  excite  a  violent  prejudice  against  it, 
before  any  of  its  provisions  were  known,  and  even 
before  it  was  certain  that  a  treaty  had  been  formed. 
p3n  the  8th  of  June,  the  vice-president  and  senate 
met,  and  on  the  24th,  after  having  given  to  it  the 
full  and  serious  deliberation  which  the  importance  of 
the  subject  demanded,  by  a  vote  of  precisely  two- 
thirds,  advised  and  consented  to  its  conditional  rati- 
fication, and  adjourned  without  removing  the  injunc- 
tion of  secrecy.  But,  immediately,  an  imperfect 
abstract,  and,  in  a  few  days,  a  complete,  but,  of 
course,  unauthorized  copy  of  the  treaty,  was  pub- 
lishejjQ  In  the  whole  history  of  political  and  party 
strife,  it  would  not  be  easy  to  find  a  more  violent 
attempt  to  poison,  mislead,  and  exasperate  the  pub- 
lic mind,  than  now  ensued.  \Everywhere  public 
meetings  were  held,  and  by  inflammatory  harangues, 
misrepresenting  the  conditions  of  the  treaty,  and 
holding  it  up  as  fraught  with  consequences  the 
most  ruinous  and  dishonorable,  the  passions  and  pre- 
judices of  the  people  were  roused  to  the  highest 
pitch.  Addresses,  almost  simultaneously,  from  all 
parts  of  the  union,  from  Boston,  New  York,  Phila- 
delphia, Baltimore,  and  Charleston,  and  then  from 
the  smaller  towns  and  remote  country  districts,  were 
poured  in  upon  the  president,  urging  him  not  to  give 
his  assent  to  the  treatv.  j /"  It  is  difficult,"  says  Judge 
Marshall,1  "  to  review  tfie~various  resolutions  and 
addresses  to  which  the  occasion  gave  birth,  without 
feeling  some  degree  of  astonishment  mingled  with 

1  Life  of  Washington,  vol.  v.  p.  626. 


LIFE    OF    JUDGE     SMITH.  77 

humiliation,  at  perceiving  such  proofs  of  the  deplor- 
able fallibility  of  human  reason."  Yet  while  the 
one  party  were  so  violent  in  assailing  the  treaty,  the 
other  was  not  equally  prepared  to  defend  it,  and,  for 
a  time,  seemed  bent  down  by  the  rush  of  the  popular 
torrent.  To  the  president  the  condition  of  things 
was  perplexing  in  the  extreme,  (^n  a  private  letter 
to  the  secretary  of  state,  dated  the  29th  of  July,  he 
says,  "  I  have  never,  since  I  have  been  in  the  admin- 
istration of  the  government,  seen  a  crisis  which,  in 
my  opinion,  has  been  as  pregnant  with  interesting 
events,  nor  j:me  from  which  more  is  to  be  appre- 
hended,, "J  (But  he  was  not  moved  from  his  purpose. 
"  All  these  things,"  he  added,  in  a  letter  from  Mount 
Vernon,  of  the  3d  August,  "  do  not  shake  my  deter- 
mination with  respect  to  the  proposed  ratification." 
He  reached  Philadelphia  the  llth  of  August,  and  on 
the  18th  signed  the  treaty.;  Until  now  no  attack 
had  been  made  upon  the  president.  Whatever  else 
had  been  assailed,  party  violence,  in  its  extremest 
rage,  had  not  dared  to  lift  its  hand  against  the  spot- 
less majesty  of  his  character.  But  now  it  was  more 
than  insinuated,  not  only  that  he  had  violated  the 
constitution,  for  which  an  impeachment  was  publicly 
suggested,  but  that  he  had  drawn  from  the  treas- 
ury, for  his  private  use,  more  than  the  salary  an- 
nexed to  his  officer}  So  boldly,  and  with  such  a 
show  of  evidence,  was  this  charge  made,  that  the 
confidence  of  some,  even  among  the  faithful,  was  for 
a  moment  shaken,  and  they  feared  lest  some  signal 
indiscretion  or  mistake  might  be  proved.  But  party 
malevolence  itself  was,  at  once  and  forever,  silenced 
7* 


78  LIFE    OF    JUDGE    SMITH. 

on  that  point  by  the  statement  of  Colonel  Hamilton, 
who,  though  not  in  office  since  the  last  day  of  Jan- 
uary, had  been  secretary  of  the  treasury  at  the 
time  the  peculation  was  said  to  have  taken  place. 

Another  event  meantime  had  occurred,  which,  for 
a  short  while,  almost  rivaljed  the  British  treaty  in  the 
interest  it  awakened.  (Through  a  letter  from  the 
French  minister,  M.  Fauchet,  which  had  been  inter- 
cepted on  its  way  to  France,  circumstances,  never 
yet  satisfactorily  explained,  were  brought  to  light, 
which  left  strong  suspicions  on  the  mind  of  the  pre- 
sident, that  Edmund  Randolph,  who,  on  the  1st  of 
January,  1794,  had  succeeded  Mr.  Jefferson  as  se- 
cretary of  state,  had  been  drawn  into  an  improper, 
if  not  criminal,  intercourse  with  the  French  govern- 
ment. The  president,  to  whom  the  letter  had  been 
communicated  by  the  British  minister,  in  the  pres- 
ence of  the  other  members  of  the  cabinet,  handed  it 
to  Mr.  Randolph,  who,  on  reading  it,  immediately 
and  indignantly  resigned  his  office.  This  took  place 
on  the  19th  of  August,  the_  day  after  the  treaty  had 
been  signed  by  the  president!) 

When  congress  met  in  December,  1795,  it  ap- 
peared that  a  large  majority  of  the  house  were  op- 
posed to  the  late  measures  of  the  administration. 
The  treaty,  which  had  been  only  conditionally  rati- 
fied, was  waiting  till  the  conditions  should  be  as- 
sented to  by  the  British  government,  and  therefore, 
except  in  the  address  upon  the  president's  message, 
could  not  in  the  early  part  of  the  session,  be  brought 
before  the  house,  which  was  mostly  taken  up  with 
matters  not  of  a  party  nature.!  Among  other  things, 


LIFE    OF    JUDGE    SMITH.  79 

with  that  passion  for  stage  effect,  which  is  so  charac- 
teristic of  the  nation,  the  flag  of  the  French  repub- 
lic was,  through  the  president,  presented  to  congress, 
as  a  mark  of  the  enthusiastic  attachment  existing 
between  the  two  governments.  It  was  difficult  for 
Washington  to  refuse  this  token  of  friendship,  and 
yet,  with  his  severe  taste,  it  was  also  difficult  to 
know  how  to  receive  it.  The  great  topic,  however, 
of  interest  through  the  winter,  was  the  treaty,  which, 
at  length,  on  the  last  day  of  February,  was  an- 
nounced to  the  people  of  the  United  States,  by  a 
proclamation  of  the  president,  which  on  the  follow- 
ing day  was  communicated  to  the  two  branches  of 
the  legislature. 

The  feelings  which,  while  the  house  were  engaged 
on  other  subjects,  had  been  but  poorly  concealed, 
now  burst  out  with  open  violence.  [.The  contest  was 
begun  by  a  resolution  offered  by  Mr.  Livingston,  of 
New  York,  requesting  the  president  to  lay  before 
them  the  instructions  of  Mr.  Jay,  and  the  corres- 
pondence, and  other  documents  relating  to  the  nego- 
tiation. After  an  exciting  debate,  in  which  all  the 
powers  of  reasoning  and  the  passions  of  party  strife 
were  engaged,  the  resolution  was  carried,  on  the 
24th  of  March,  by  a  vote  of  sixty-two  to  thirty- 
seven. 

(Jhe  president,  after  deliberately  weighing  the  sub- 
ject, on  the  30th  of  March  sent  to  the  house  a  mes- 
sage, in  which,  with  great  dignity  and  firmness,  he 
refused  to  comply  with  the  request.  This  decisive 
step  seemed  to  break  the  last  cord  of  union  between 
him  and  the  leaders  of  the  opposition.  An  angry 


80  LIFE    OF    JUDGE    SMITH. 

discussion  followed  on  the  treaty-making  power,  and 
resolutions  adverse^  to  the  message  were  passed,  by  a 
large  majority.)  (^Another  battle-field,  however,  still 
remained.  On  the  13th  of  April,  when  a  bill  to 
make  appropriations  for  carrying  out  the  treaty,  was 
introduced,  the  whole  matter  was  again  brought  up 
under  a  new  aspect,  and  a  debate  yet  more  remark- 
able for  strength  of  argument,  and  the  earnestness  of 
its  appeals  to  the  lowest  and  the  loftiest  of  political 
passions,  was  finally  closed  on  the  30th  of  April, 
two  days  after  Fisher  Ames's  great  speech,  which 
produced  an  effect  probably  never  exceeded  by  any 
speech  in  the  halls  of  congress.^ 

Time  had  now  been  given  to  the  people  for  ma- 
ture consideration.  The  first  vehement  emotions 
had  subsided.  Misrepresentations  had  been  cor- 
rected ;  argument  had  succeeded  to  declamation, 
and,  through  the  writings  of  the  ablest  men,  espe- 
cially the  essays  of  Camillus,1  the  popular  current 
was  changed.  (As  before  against  the  treaty,  so  now 
in  its  favor,  petitions  from  all  quarters  came  pouring 
in  upon  congress,  and  the  majority  of  the  house,  to 
their  consternation,  found  themselves  supported  by  a 
minority  of  the  people.  This  produced  such  an 
effect,  that  when  the  vote  was  finally  taken  in  the 
committee  of  the  whole,  on  the  29th  of  April,  the 
bill  was  passed  by  the  casting  vote  of  the  chair- 
man, and  on  the  following  day  the  house  came  to 
the  same  decision,  by  a  vote  of  fifty-one  to  forty-eight. 

In  the  debates  of  this  session,  Mr.  Smith  took  "a 

1   Alexander  Hamilton. 


LIFE     OF     JUDGE     SMITH.  81 

more  active  part  than  at  any  time  before.  Those  of 
his  speeches'  that  I  have  seen,  are,  what  they  purport 
to  be,  discussions,  in  which  facts  and  principles  are 
brought  to  bear,  with  great  force,  on  particular  subjects, 
under  particular  circumstances,  and  generally  with 
reference  to  particular  men.  They  are  remarkable 
for  the  skill  with  which  everything  adventitious  is  set 
aside,  and  the  subject  held  up  in  its  naked  simplicity. 
With  most  of  them  the  interest,  when  they  were  de- 
livered, must  have  been  greatly  increased  by  the 
good-humored,  but  sometimes  exceedingly  severe  per- 
sonal thrusts,  dealt,  as  it  were,  in  sport,  while,  with- 
out turning  to  the  right  hand  or  to  the  left,  the 
speaker  goes  steadily  forward  to  the  complete  eluci- 
dation of  the  subject.  Their  merit,  like  that  of  a 
judicial  decision,  consists  in  the  force  of  the  whole  ; 
parts  cannot  be  given  as  samples  ;  and,  unlike  a  legal 
opinion,  they  are  to  be  viewed  not  only  with  refer- 
ence to  the  exact  nature  and  bearings  of  the  question, 
and  the  facts  connected  with  it,  but  with  a  full  un- 
derstanding of  the  position  of  individuals,  and  the  cir- 
cumstances connected  with  each  particular  stage  of 
the  discussion.  In  the  latter  part  of  his  life,  Mr. 
Smith  himself  attached  little  value  to  them.  But  in 
them  he  showed  himself  a  skilful  debater,  and  an 
able  defender  of  Washington's  administration. 

The  following  extracts  from  letters  will  show  what 
were  his  feelings,  and  may  serve  also  as  a  running 


1  Mr.  Webster  has  said  of  his  speeches  that  they  are  excellent ;  es- 
pecially some  of  them  on  constitutional  points.  His  speech  on  the  Brit- 
ish treaty  the  16th  March,  for  instance,  may  be  commended  as  a  clear, 
direct,  strong,  judicial  statement  of  a  constitutional  argument. 


82  LIFE     OF     JUDGE     SMITH. 

commentary  on  the  events  of  the  day.  During  the 
previous  session,  his  letters  had  been  almost  despond- 
ing. But  now,  in  the  heart  of  the  conflict,  though 
himself,  on  a  subject  which  he  considered  of  such 
vital  consequence,  in  a  small  minority,  his  letters 
were  full  not  only  of  hope,  but  of  a  boyish  glee  ; 
hardly  in  a  single  instance,  till  after  the  contest  was 
successfully  ended,  did  they  exhibit  anything  of  doubt 
or  gloom.  He  was  not  a  man  to  be  cowed  down  by 
what  seemed  an  overwhelming  opposition.  So  that 
he  could  but  meet  them  fairly,  his  strength  and  cour- 
age were  only  roused  by  difficulties  and  dangers. 
Through  life  this  sportiveness  under  circumstances 
which  filled  others  with  apprehension  and  gloom,  was 
a  marked  feature  in  his  character,  and  bore  him  up, 
when  otherwise  he  must  have  sunk  by  the  way. 

To  John  Smith,  12th  December,  1795.  "It  is 
now  a  week  since  I  arrived  at  this  place,  (Philadel- 
phia.) I  am  stillxvery  much  of  an  invalid,  my  cold, 
as  was  to  be  expected,  rather  increased  than  dimin- 
ished on  the  journey.  I  am  taking  every  precaution 
to  prevent  its  continuance,  and  hope  in  a  few  days 
to  be  able  to  give  a  good  account  of  it.  I  called  on 
my  friend  Ames,  and  spent  a  night  at  his  house.  I 
think  he  is  on  the  mending  hand,  but  his  recovery 
will  be  but  slow,  and  he  will  not  be  able  to  give  his 
attendance  here  till  towards  spring,  if  at  all.  We 
have  scarcely  entered  on  business.  The  president's 
speech  1  enclose.  You  will  see  that  he  treads  lightly 
on  the  treaty.  It  is  difficult  to  see  how  we  can  find 
an  opportunity  to  abuse  him  in  our  answer,  but,  as  I 
believe  a  majority  of  our  house  are  in  the  opposition, 


LIFE     OF     JUDGE     SMITH.  83 

it  is  more  than  probable  that  some  censure  will  be 
mingled  in  our  answerTJ  Not  a  word  as  to  Mr.  Ran- 
dolph. His  affairs  seem  still  enveloped  in  mystery. 
When  the  curtain  shall  be  drawn,  which  is  to  disclose 
the  hidden  things  of  darkness,  is  altogether  uncertain. 
I  am  not  so  agreeably  circumstanced  as  to  company, 
as  last  winter.  I  miss  my  friend  Ames  very  much." 
To  the  Hon.  John  Taylor  Gilman,1  16th  December, 
1795.  "  Dear  sir  :  I  have  just  read  your  address  to 
the  legislature  at  the  opening  of  the  present  session, 
and  cannot  deny  myself  the  pleasure  of  assuring  you 
that  it  has  given  me  the  highest  satisfaction.  That 
the  federal  government  is  a  foreign  one,  that  its  ad- 
ministrators and  its  measures  are  to  be  viewed  through 
the  medium  of  apprehension  and  jealousy,  are  senti- 
ments cherished  by  many  in  high  office  in  some  of 
the  states.  They  are  sentiments  no  less  false  than 
pernicious.  From  this  cause,  it  has  happened  that 
scarce  a  measure  of  the  general  government  has  es- 
caped censure,  and  the  most  virulent  and  unprovoked 
abuse  has  been  levelled  against  every  man  actively 
concerned  in  its  administration.  The  honest  and 
patriotic  have  experienced  what  the  guilty  and  cor- 
rupt alone  could  merit.  When  faction  has  been  con- 
sidered as  the  surest  test  of  patriotism,  and  calumny 
as  the  proper  reward  for  faithful  services,  it  requires 


1  A  man  whose  sound  judgment  and  uprightness  were  alike  honorable 
to  himself  and  to  the  people  of  the  state,  who,  in  fourteen  different  elec- 
tions, chose  him  for  their  governor.  "He  furnished,"  said  Judge  Smith, 
"  a  living  proof  that  firmness  and  independence  of  mind,  joined  with 
integrity  and  talents,  may  be  popular.  Yet  he  was  not  in  the  habit  of 
addressing  himself  to  popular  passions  and  popular  prejudices." 


84  LIFE     OF     JUDGE     SMITH. 

but  little  political  sagacity  to  foresee  what  kind  of 
pilots  we  shall  soon  have  at  the  helm  of  our  political 
ship.  In  every  society  there  are  men,  —  the  virtu- 
ous, the  industrious,  and  the  good,  —  (in  this  coun- 
try they  are  a  great  majority,)  who  are  interested  in 
the  preservation  of  order  and  good  government.  It 
is  a  vain  expectation  that  society  is,  or  ever  will  be, 
composed  of  no  other  descriptions  of  character ;  there 
will  always  be  drones  in  every  hive,  and  there  will 
always  be  ambitious  men  desirous  of  climbing  up  the 
ladder  of  political  power  and  eminence  ;  there  will 
always  be  popular  topics  to  catch  the  giddy  and  un- 
thinking. It  will  always  be  the  duty  of  good  men, 
and  especially  of  those  who  share  largely  in  the  con- 
fidence of  their  fellow-citizens,  by  a  manly  and  ex- 
plicit avowal  of  their  sentiments  on  all  proper  occa- 
sions, to  counteract  the  views  of  the  enemies  of  our 
public  peace.  I  am  persuaded  that  the  present  crisis 
demands  such  a  line  of  conduct ;  I  am  pleased  that 
you  have  adopted  it.  I  am  persuaded  if  your  exam- 
ple were  followed  in  the  different  states,  the  effects 
would  be  the  most  favorable  that  can  be  imagined. 
The  confidence  which  you  express  in  the  president, 
Mr.  Jay  and  the  senate,  is,  I  am  confident,  deserved. 
It  is  totally  different  from  implicit  faith,  and  blind 
obedience  to  persons  in  power ;  and  were  I  to  look 
for  these  last  qualities,  base  and  abject  as  they  are,  I 
should  expect  to  find  them,  not  among  the  men  who 
bestow  a  just  confidence  where  it  is  justly  due,  but 
among  the  false  patriots  and  demagogues  of  the  pre- 
sent day.  The  answer  of  your  house  of  representa- 
tives, as  it  evinces  a  unanimous  concurrence  in  the 


LIFE     OF     JUDGE     SMITH.  85 

sentiments  advanced  by  you,  must  be  flattering  and 
gratifying  in  the  highest  degree.  That  the  state  I 
have  the  honor  to  represent  should,  on  this  occasion, 
so  honorably  distinguish  themselves,  as  the  friends  of 
rational  liberty,  good  order  and  good  government, 
affords  me  a  satisfaction  which  I  can  find  no  words 
to  express.  There  surely  can  be  nothing  more  agree- 
able than  to  find  that  one's  sentiments  are  in  perfect 
harmony  with  that  of  the  people  at  large.  Mr.  R.'s 
long-expected  vindication  is  at  length  promised  for 
Friday  next.  Little  doubt  seems  to  be  entertained 
of  his  having  been  improperly  wrought  upon  by  Fau- 
chet.  It  will  not  be  easily  credited  that  Mr.  R.  is 
the  first  on  whom  attempts  have  been  made  by  our 
virtuous  sister." 

To  John  Smith,  29th  January,  1796.  "  We  have 
not  passed  a  single  bill,  and  have  been  in  session 
eight  weeks.  I  do  not  think  that  this  is  against  us  ; 
we  are  maturing  business.  If  the  state  legislatures 
should,  in  this  respect,  imitate  us,  it  would  be  better. 
Not  so  many  of  your  bills  at  the  last  session  would 
have  been  negatived.  The  great  danger  is,  that  we 
legislate  too  much.  There  is  some  business  of  con- 
siderable importance  under  deliberation,  and  I  think 
the  session  will  not  terminate  before  the  latter  end  of 
April.  I  do  not  think  much  mischief  will  be  done. 
There  will  be  an  attack,  we  are  told,  on  the  treaty, 
when  it  is  laid  before  us ;  and  we  expect  in  a  few 
days  to  commence  a  discussion  on  the  propriety  of 
giving  more  encouragement  to  our  own  shipping. 
As  this  will  be  at  the  expense  of  the  agriculture  of 
the  country,  I  shall  oppose  it.  I  like  the  independ- 


86  LIFE    OF    JUDGE    SMITH. 

ence  of  Governor  Oilman,  and  think  it  will  event- 
ually operate  in  his  favor.  Perhaps  the  bill  he  ob- 
jected to  was  a  good  one,  but  still,  I  believe  he  acted 
uprightly,  and  therefore  I  approve  of  his  conduct. 
I  write  this  in  the  midst  of  a  debate  on  the  ques- 
tion, whether  we  should  employ  a  stenographer, 
or  short-hand  writer,  to  take  down  the  debates  of  the 
house." 

the  Hon.  Fisher  Ames,  14th  January,  1796. 
As  to  your  inquiries  about  Randolph's  connexion 
with  Fauchet,  how  far  it  went  I  am  altogether  igno- 
rant. The  despatches  No.  11,  &c.,  luckily  for  the 
parties,  have  not  been  intercepted.  If  Randolph  has 
not,  since  October,  '94,  '  touched  something  real,'  it 
must  have  arisen  from  the  cause  mentioned  by  the 
Citizen,  and  which  he  seems  to  regret  exceedingly, 
namely,  that  he  had  no  cash,  more  than  sufficient  for 
himself;  and  though  our  allies  are  vastly  civil,  in 
leading  their  friends  to  some  very  pretty  amusement, 
such  as  a  little  exercise  at  the  guillotine,  and  a  short 
sail  in  a  drowning  boat,  where  ladies  are  concerned, 
-yet  I  have  always  observed,  that  when  money  is 
concerned,  they  are  very  apt,  clownish  as  it  is,  to 
help  themselves  first.  He  put  him  off,  the  first  time, 
with  the  old  story  of  the  pure  morals  of  his  nation, 
but  it  is  not  to  be  presumed  that  Randolph  would  be 
fobbed  off  so.  Besides,  I  think  the  Citizen,  with  all 
that  impudence  for  which  his  nation  is  so  remarkable, 
and  of  which  he  was  the  fit  representative,  would 
not  think  of  passing  the  same  stale  trick  twice  upon 
our  worthy  secretary.^ 

Mr.  Ames,  on  account  of  his  feeble  health,  was 


LIFE    OF    JUDGE    SMITH.  87 

not  able  to  take  his  seat  in  congress  till  the  9th  of 
February.  Till  then  there  was  a  very  frequent  cor- 
respondence between  him  and  Mr.  Smith,  who  kept 
him  informed  of  the  proceedings  at  the  seat  of  go- 
vernment. This  correspondence,  with  the  exception 
of  three  or  four  letters  from  Mr.  Ames,  and  two  or 
three  fragments  from  Mr.  Smith,  I  have  not  been  able 
to  find. 

From  the  Hon.  Fisher  Ames,  Dedham,  January 
18,  1796.  "  My  dear  friend :  You  have  deserved 
well  of  the  country  for  writing  so  punctually,  and  so 
fully,  so  wittily,  and  so  wisely.  I  am  glad  you 
abstain  from  scandal,  because  you  know  I  hate  it. 
Yet  abuse  Mr.  Thacher,  if  you  please,  for  his  not 
writing  to  me,  and  I  shall  esteem  the  favor  in  pro- 
portion to  your  known  repugnance  to  the  task.  I 
think  spiritedly,  and  almost  resolve  to  go  on  to  Phi- 
ladelphia. Should  this  snow  last,  I  am  half  resolved 
to  jingle  my  bells  as  far  as  Springfield,  within  a 
week.  That,  however,  is  a  crude  purpose,  ripening 
in  my  brain.  To-morrow  I  go  to  my  loyal  town  of 
Boston,  in  my  covered  sleigh,  by  way  of  experiment 
of  rny  strength,  which  will  prove  just  nothing,  as  it 
is  no  exercise.  More  of  this,  and  more  decidedly, 
in  my  next.  I  am,  I  believe,  unfit  for  any  fatigue,  or 
for  business.  I  go  with  a  fixed  design  to  be  useless. 
Does  that  surprise  you  ? 

I"  I  have  read  two  Camilluses,  on  the  constitution- 
ality of  the  treaty  ;  so  much  answer  to  so  little 
weight  of  objection,  is  odds.  He  holds  up  the  aegis 
against  a  wooden  sword.  Jove's  eagle  holds  his  bolts 
in  his  talons  and  hurls  them,  not  at  the  Titans,  but  at 


88 


LIFE    OF    JUDGE    SMITH, 


sparrows  and  mice.  I  despise  those  objections,  in 
which  blockheads  only  are  sincere?) 

"  Our  governor  l  has  not  yet  delivered  his  most  de- 
mocratic speech,  although  it  is  the  second  week  of  the 
court  sitting.  To-morrow  wisdom  opens  her  mouth. 
It  is  said  he  has  twice  or  thrice  new-modelled  his 
preachment,  as  he  was  led  by  hopes  and  fears  of  the 
temper  of  the  members,  finding  no  anti-treaty  stuff 
would  be  well  received,  it  is  to  be  supposed.  So  says 
rumor.  Your  despatches  are  referred  to  a  committee 
of  the  whole,  and  if  any  part  shall  be  found  to  de- 
mand a  more  detailed  answer,  it  shall  be  sent  by  the 
next  post.  Whether  you  did  play  the  fool  or  not, 
when  the  flag  was  delivered,  you  seem  to  have  done 
it.  Such  parade  to  check  enthusiasm!  Oh  stuff! 
Is  it  necessary  to  show  zeal  for.  the  power  of 
France,  to  evince  regard  for  liberty  ?  You  remark, 
justly,  '  Reason  is  a  slim  underpinning  for  govern- 
ment.' But  our  reason  is  no  less  wild  than  our 
passions.  Our  very  wise  folks  think  a  man  false  to 
his  own  country,  if  he  is  not  a  partisan  of  some  fo- 
reign nation.  Your  friend,  F.  A." 

From  the  same :  Springfield,  Jan.  29,  1796,  Fri- 
day. "  I  pray  you  look  out  lodgings,  such  as  will  suit 
my  invalid  condition.  If  I  might  choose,  I  would 
prefer  a  place  where  only  you  and  I  could  be  re- 
ceived ;  that  is  not  material.  How  would  it  agree 
with  your  taste  to  have  our  two  beds  in  one  chamber, 
where  a  fire  might  be,  every  evening,  if  desired  ;  and 
the  other  a  drawing-room  ?  This  thought  has  not  lain 

1  Samuel  Adams. 


LIFE    OF    JUDGE    SMITH.  89 

long  ripening,  and  may  be  met  by  your  objections ; 
it  shall  not  be  allowed  to  contend  against  them. 
Mrs.  Ames  relies  upon  your  friendship  to  keep  the 
talking  bullies  off,  whose  noise  and  perseverance  would 
waste  my  strength  as  well  as  patience.  My  organs 
are  sound,  but  I  am  yet  weak,  and  five  minutes  un- 
due exertion  will  overthrow  me  for  a  whole  day. 
This  makes  it  absolutely  necessary  to  secure  a  place 
of  repose,  and  to  persist  in  a  plan  of  great  careful- 
ness and  abstemiousness.  I  shall  hire  my  speeches 
made  and  delivered.  Bradley  went  home,  in  1794,  re- 
porting through  the  country  that  the  printed  speeches 
were  known  to  be  made  by  Englishmen,  who  had 
come  over  to  work  in  that  way,  some  at  five  guineas 
a  speech,  some  as  high  as  ten.  But  a  speech  could 
be  bespoke  and  printed,  at  almost  any  price." 

From  the  same.  "  Mamaronuk,  at  Mrs.  Horton's, 
twenty-seven  miles  east  from  New  York,  Feb.  3, 
1796,  Wednesday  morning.  My  dear  friend:  Here 
I  am,  per  '  varies  casus,'  through  thick  and  thin ; 
'  jactatus  et  terris  ; '  the  sleigh  often  on  bare  ground  ; 
vi  superum,  and  then  there  was  great  wear  and  tear 
of  horse-flesh  ;  tantsene  animis,  irae,  such  is  my  pat- 
riotic zeal  to  be  useless  in  congress.  /  I  give  you  a 
translation  to  save  you  trouble  ;  and  I  have  the  most 
intimate  persuasion  that  it  is  as  near  the  original  as 
the  copies  of  Mr.  Fauchet's  despatches,  No.  3  and  6j 
I  left  Springfield  Saturday  morning,  and  came  on  to 
Hartford,  very  sick  all  the  way.  But  I  assure  you 
solemnly,  I  survived  it,  and  was  well  the  next  morn- 
ing. Lodged  at  New  Haven  Sunday  night,  at  Nor- 
walk  Monday  night.  The  snow  grew  thin  at  New 
8* 


90  LIFE    OF    JUDGE    SMITH. 

Haven,  and  was  nearly  gone  in  the  cart-way  at  Stam- 
ford.   There  I  procured  a  coachee  from  a  Mr.  Jarvis, 
who  was  very  obliging,  and  no  democrat,   his   name 
notwithstanding.     Came  on  wheels  to  this  place,  and 
slept ;  waked,  and  found  a  snow-storm  pelting  the 
windows.     It  still  continues,  and   I  have  sent  back 
the  coachee  sixteen  miles  to  Mr.  Jarvis,  and  wait  for 
the  sleigh.     Fate,  perhaps,  ordains  that  it  will  thaw 
by  the  time  it  comes  back ;    so  much  uncertainty  is 
there,  in  all  the  plans  of  man  !     The  novelty  of  this 
grave   reflection   will   recommend   it   to   you.     To- 
morrow expect  to  hear  the  bells  ring,  and  the  light- 
horse  blow  their  trumpets  on  my  reaching  New  York. 
If  Gov.  Jay  will  not  do  that  for  me,  let  him  get  his 
treaty  defended  by  Camillus  and  such  Understrap- 
pers.    I  intend  to  pass  two  days  there,  and  three 
more  will,  I  trust,  set  me  down  in  Philadelphia.     Do 
not  let  me  go  down  to  the  pit  of  the  Indian  Queen.    It 
is  Hades,  and  Tartarus,  and  Periphlegethon,  Cocytus, 
and  Styx,  where  it  would  be  a  pity  to  bring  all  the 
piety  and  learning  that  he  must  have,  who  knows  the 
aforesaid  infernal  names.     Pray  leave  word  at  the  said 
Queen,  or,  if  need  be,  at  any  other  Queen's,  where 
I  may  unpack  my  weary  household  gods.     I  am  the 
better  for  the  journey,  although  I  have  at  least  three 
times    been  so  ill  as  to  come  near  fainting.      My 
country's  good  alone  could  draw  a  man  so  sick  from 
home  —  saving  that  I  am  not  sick,  and  shall  do  my 
country  no  good.     That,  however,  is  not  allowed  by 
counsel  to  impair  the  obligation  to  pay  me  six  dollars 
per   day.      Forbearing   to   be   mischievous,    is    said 
to  be  a  valid  consideration.     I  shall  not  prove  a  trou- 


LIFE    OF    JUDGE    SMITH.  91 

blesome  lodger,  nor  call  for  little  messes  ;  a  slice  of 
dry  bread  at  noon,  wine-whey  frequently  at  bed-time, 
will  be  all  the  addenda  to  the  common  attendance. 
Your  offer  to  lodge  with  me  in  the  same  house  is 
really  very  friendly,  as  you  might  well  expect  to  find 
me  both  stupid  and  hyp'd.  If  I  should  prove  other- 
wise and  better,  it  will  be  a  just  reward  for  your 
generous  friendship.  Yours." 

To  Mr.  Ames,  6th  February,  1796.  "  You  say 
you  will  play  orator  Mum,  in  congress.  You  shall  be 
permitted  to  play  no  other  part  by  me,  because  it  will 
injure  your  health  ;  and  by  my  friend  Harper,  be- 
cause he  talks  all  the  time  himself;  by  the  jacobins, 
because  they  never  liked  your  speaking ;  and  by  all 
your  friends,  because  they  wish  you  '  to  live  to  speak 
another  day  ; '  and,  I  may  add,  because  there  will  be 
no  subject  worthy  of  your  talents.  '  Nee  deus  inter- 
sit  nisi  vindice  nodus.'  I  ain't  sure  I  have  the  Latin 
right.  The  supreme  court  are  in  session,  and  I  am, 
you  know,  fond  of  attending,  to  learn  wisdom.  You 
will  therefore  be  so  good  as  to  excuse  this  very  hasty 
scrawl." 

To  Samuel  Smith,  5th  March,  1796.  "  Mr.  Ells- 
worth, a  senator  from  Connecticut,  is  appointed  chief 
justice  of  the  United  States,  and  will  accept.  He  is 
a  good  man,  and  a  very  able  one  ;  a  man  with  whom 
I  am  very  well  acquainted,  and  greatly  esteem.  The 
treaty  is  laid  before  our  house,  and  probably  will  be 
discussed  in  a  few  days.  The  event  cannot  be  con- 
jectured. We  have  a  great  many  changeable  ani- 
mals ;  one  never  knows  where  to  find  them.  I  am 
very  sanguine,  however,  that  all  will  be  well." 


92  LIFE    OF    JUDGE    SMITH. 

To  the  same,  19th  March.  "We  are  engaged  in 
the  debate  mentioned  in  my  last,  as  to  the  powers  of 
the  house  of  representatives,  in  making  treaties.  Part 
of  the  debates  are  in  the  paper  enclosed.  I  will  send 
you,  by  the  next  post,  my  observations  on  the  ques- 
tion, as  delivered  in  the  house  on  the  16th.  They 
appear  in  to-day's  paper.  I  have  taken  a  more  active 
part  in  business  than  formerly,  and  have  been  as  suc- 
cessful as  I  had  any  reason  to  expect." 

l^to  the  same>  25th  March.  "  We  have  had  a  de- 
bate of  three  weeks,  nearly,  on  the  question  to  call  on 
the  president  for  the  papers  relative  to  the  treaty  with 
Great  Britain.-  The  call  is  made  under  an  idea  that 
the  house  of  representatives  have  a  right  to  judge  of 
the  merits  of  the  treaty,  and,  if  they  do  not  like  it, 
reject  it.  Under  this  idea,  we  opposed  the  motion. 
Yesterday  the  question  was  decided  —  sixty-two  for 
calling  on  the  president  for  the  papers,  and  thirty- 
seven  against  itTj  I  have  on  this  occasion,  as  on 
some  others  this  session,  taken  the  liberty  to  give  my 
sentiments.  They  are  published,  but  I  have  not  a 
copy  on  hand.  I  shall  send  you  a  newspaper  con- 
taining them,  when  I  can  procure  one.  In  some  of 
the  papers  they  are  not  yet  published.  Notwithstand- 
ing the  house  determine  they  have  a  right  to  inquire 
into  the  merits  of  the  treaty,  I  yet  persuade  myself 
they  will  (that  is,  a  majority  will,)  agree  to  make  the 
necessary  provision  to  carry  the  treaty  into  effect." 

f^fo  the  same,  31st  March,  1796.  "  We  have  re- 
ceived an  answer  from  the  president  of  the  United 
States,  to  our  request  of  the  24th  March,  calling  on 
him  for  his  instructions  to  the  minister  who  negoti- 


LIFE    OF    JUDGE    SMITH.  93 

ated  the  treaty  with  Great  Britain,  and  the  corres- 
pondence and  papers  relative  thereto.  He  refuses  to 
send  the  papers.  You  can  scarcely  conceive  the  sat- 
isfaction we  derive  from  this  determination  of  the 
president.  He  enters  somewhat  at  large  into  the 
subject,  and  refers  to  the  proceedings  of  the  conven- 
tion who  framed  the  constitution.  This  is  under- 
stood as  a  severe  criticism  on  the  conduct  of  Mr. 
Madison  and  Mr.  Baldwin,  who  were  both  members 
of  that  convention,  and  who  must  have  known  that  no- 
thing was  further  from  the  intentions  of  the  members 
of  that  convention,  than  to  give  the  house  of  repre- 
sentatives the  power  in  relation  to  treaties,  which  a 
majority  of  that  body  now  claim.  Madison's  conduct 
is  utterly  irreconcilable  with  an  ingenuous  and  honest 
mind ;  and  I  think  his  duplicity  and  insincerity,  on 
this  occasion,  have  given  a  wound  to  his  character, 
(I  mean  his  political  character,)  which  no  time,  can 
heal.  The  president  must  be  dissatisfied  with  him. 
The  matter  is  now  before  the  dread  tribunal  of  the 
public,  and  I  believe  they  will  determine  right.  The 
weather  begins  to  grow  warm,  and,  of  course,  very 
uncomfortable.  I  am  afraid  we  shall  have  much  in- 
ternal heat  as  well  as  external.  The  Lord  have 
mercy  on  us !  The  Virginians  threaten  us,  that,  as 
the  president  would  not  give  the  papers,  they  will 
make  no  provision  for  executing  the  treaty.  They 
are  capable  of  almost  anything,  and  I  am  afraid  that 
a  difference  between  the  two  houses  will  prolong  the 
session.  The  senate  will  never  consent  to  rise  till 
provision  is  made  to  execute  all  the  treaties.  The 
president  has  this  day  nominated  the  commissioners 
under  the  treaty." 


94  LIFE    OF    JUDGE    SMITH. 

From  the  Hon.  Christopher  Gore,  12th  April, 
1796.  "  My  dear  sir  :  I  am  much  obliged  by  your 
letter  of  the  2d  instant.  Ames's  health  is  precious 
to  his  friends,  and  I  have  no  doubt  is  much  in- 
creased by  your  affection  and  attention.  If  he  could 
cease  to  think,  he  would  certainly  be  a  well  man. 
The  action  of  his  mind  stops  that  of  his  body. 
Your  house  and  the  president  seem  to  be  at  war. 
I  know  of  no  neutrals  in  this  contest.  The  law  of 
our  nation  admits  of  none.  The  public  is  much  in- 
debted to  you  and  your  friends,  for  placing  this  ques- 
tion, so  as  to  leave  no  loopholes  for  even  knaves  and 
hypocrites  to  creep  out.  They  must  assume  the 
right  of  opposing  the  constitution,  or  tread  back  the 
false  steps  they  have  taken.  They  are  not  ingenuous 
enough  for  the  latter,  and  I  hope  they  have  not  im- 
pudence enough  for  the  former.  In  expectation  of 
takyig  you  by  the  hand  shortly,  I  remain,  my  dear 
sir,  your  affectionate  friend,  C.  G." 

(To  Samuel  Smith,  28th  April,  1796.  «  The  treaty 
is  still  on  the  anvil,  but  we  expect  the  question  this 
day,  and  it  is  doubtful  which  way.  I  am  more  en- 
couraged this  morning  than  at  any  former  period, 
that  we  shall  prevail  on  ihe  first  vote.  At  all  events 
the  division  will  be  pretty  equal,  and  we  shall  cer- 
tainly carry  it  in.timeTj  ^The  sovereign  people  ap- 
pear to  be  very  much  alarmed.  An  express  arrived 
yesterday  from  Boston,  in  sixty-two  hours,  with  a 
petition  signed  by  upwards  of  eleven  hundred  mer- 
chants, traders,  and  citizens.  These  things  have  their 
effects  on  weak  minds,  of  which,  it  must  be  con- 
fessed, a  part  of  our  house  is  composed.  I  had 


LIFE    OF   JUDGE    SMITH.  95 

intended  to  have  spoken  on  this  question,  and  was 
prepared  some  days  ago,  but  not  having  an  opportu- 
nity then,  if  the  question  is  taken  to-day,  believe  I 
shall  give  a  silent  vote.  There  have  been  many 
speeches  made,  some  of  which  might  as  well  have 
been  omitted.  My  mind  has  been  a  little  agitated 
lately,  by  a  proposal  to  go  into  the  treasury  depart- 
ment, as  comptroller,  at  a  salary  of  two  thousand  six 
hundred  and  fifty  dollars  per  annum.  When  I  say  a 
proposal,  I  mean  that  the  thing  has  been  mentioned 
to  me,  as  what  might  be  obtained.  Upon  the 
whole,  I  rather  viewed  it  as  less  advantageous  than 
my  prospects,  considering  that  one  must  reside  in 
Philadelphia,  and  live  at  great  expense,  and  declined 
being  a  candidate.  The  office  in  that  department  is 
next  to  the  secretary  of  the  treasury,  and  is  the  office 
from  which  the  present  secretary  came.  It  is  the 
head  of  the  accounting  department,  and  requires 
mercantile  and  legal  knowledge.  It  would  be  a  new 
path  to  me,  and  would  derange  all  my  views  in  life. 
I  have  been  very  happy  this  winter,  in  enjoying  the 
esteem  and  confidence  of  those  whose  good  opinion 
is  worth  regarding,  and  I  am  sure  have  many  friends 
here." 

•I     (To  the  same,  29th  April.     "  We  have  just  taken 
V\    the  question  on  the  resolution  to  appropriate  the  money 
'    y^  necessary  to  carry  the  British  treaty  into  effect,  in 
ff       committee  of  the  whole  ;  the  members  rising  in  the 
^*     affirmative  forty -nine,  the  same  number  in  the  nega- 
tive^   Muhlenberg,  the  chairman,  wonderful  to  re- 
late, decided  in  our  favor !     He  has  been  a  violent 
anti,  but  the  sovereign  people  of  Philadelphia  happen 


96 


LIFE    OF    JUDGE    SMITH. 


at  this  time  to  be  on  the  right  side,  a  thing  which  I 
presume  he  had  no  right  to  expect.  It  is  certainly 
thejirst  time.J 

^"To-morrow  we  expect  the  question  by  ays  and 
noes  in  the  house.  The  event  is  yet  doubtful. 
You  perceive  that  we  have  been,  I  may  say  still 
are,  on  the  edge  of  a  precipice,  ready  to  take  a  leap 
into  the  abyss  of  confusion^  If  we  could  persuade 
our  brethren  of  Virginia  and  North  Carolina  to  take 
this  leap,  and  they  are,  in  truth,  fit  for  nothing 
else,  our  government  might  jog  on  for  some  time. 
God  knows  how  this  ship  of  ours  will  sail,  when 
the  present  pilot  quits  the  helm.  If  we  may 
judge,  from  present  appearances,  she  will  inevitably 
founder.  I  am  afraid  that  we  are  mistaken,  when 
we  place  so  much  reliance  on  the  wisdom  of  our  citi- 
zens, to  supply  the  place  of  power  in  the  government. 
Has  not  every  citizen  good  sense  enough  to  know  that 
it  is  his  duty,  and  certainly  it  is  his  interest,  to  be 
temperate,  sober,  and  virtuous  ?  And  yet  how  few 
are  there  of  this  character  !  We  have  had  a  thou- 
sand escapes,  miraculous  escapes,  since  the  formation 
of  the  present  government.  We  have  but  just  es- 
caped the  vortex  of  European  politics,  and,  on  this 
occasion,  we  have  been  within  an  ace  of  tarnishing 
the  national  character  and  honor  —  a  stain  which  all 
the  water  in  the  ocean  could  never  wash  out.  The 
present  crisis  affords  the  most  unequivocal  proof  that 
our  prejudices  are  an  overmatch  for  our  judgment, 
our  interest,  and  even  our  sense  of  national  honor 
and  character. 

/ '  My  friend  Ames,  on  Thursday,  (April  28,)  gave 


LIFE    OF    JUDGE    SMITH.  97 

us  the  most  eloquent  speech  I  ever  heard.  The  im- 
pression was  great ;  probably  much  increased  by  the 
bodily  weakness  of  the  speaker.  His  introduction 
was  beautiful,  and  his  conclusion  divine  !  His  words, 
like  the  notes  of  the  dying  swan,  were  sweet  and 
melodious.  I  tell  him  that  he  ought  to  have  died  in 
the  fifth  act ;  that  he  never  will  have  an  occasion  so 
glorious ;  having  lost  this,  he  will  now  be  obliged  to 
make  his  exit  like  other  men.  If  he  had  taken  my 
advice,  he  would  have  outdone  Lord  Chatham.  I  am 
tired  of  tjiis  cursed  treaty  ;  it  ruins  my  temper  and 
spirits^/ 

;  In  another  letter  Mr.  Smith  says :  "  I  send  you  my 
friend  Ames's  speech.  He  was  much  indisposed, 
and  has  been  so  for  a  year  past,  and  has  taken  little 
active  part  in  business.  He  spoke  without  premedi- 
tation, and  without  having  intended  to  speak  at  all. 
The  effect  produced  was  very  great."  "  When  Mr. 
Ames  rose  to  speak,"  Mr.  Smith  used  to  say,  "  he  was 
so  feeble  as  to  be  hardly  able  to  stand,  and  supported 
himself  by  leaning  upon  his  desk.  As  from  the  first 
faint  tones  he  rose  to  the  impassioned  outpourings  of 
high  sentiment  and  patriotic  zeal,  his  physical  ener- 
gies increased,  till  the  powers  of  his  body  seemed 
equal  to  those  of  his  mind.  At  the  close  he  sunk 
down,  weak  and  exhausted  ;  «  his  mind  agitated  like 
the  ocean  after  a  storm,  and  his  nerves  like  the 
shrouds  of  a  ship  torn  by  the  tempest.'  "  The  speech, 
I  am  told,  was  written  out  from  memory  by  Mr.  Dex- 
ter and  Mr.  Smith,  and  to  their  labors,  corrected  by 
Mr.  Ames,  we  are  indebted  for  the  copy  we  now 
have,  greatly  inferior,  Mr.  Smith  always  said,  to  the 
9 


98  LIFE     OF     JUDGE     SMITH. 

speech  that  was  delivered,  but  with  enough  of  its 
original  fire  and  lofty  enthusiasm,  to  be  still  recited 
and  read  with  feelings  produced  by  no  other  Ameri- 
can speech  of  the  last  century,  except  two  or  three 
before  the  revolution. 

To  Samuel  Smith,  28th  April.  "  I  enclose  you  a 
copy  of  a  letter  written  by  a  son  of  the  Marquis  La- 
fayette. An  inquiry  was  set  on  foot  by  E.  Living- 
ston, the  patriot,  with  a  view,  as  it  was  whispered,  to 
disgrace  the  president.  It  was  known  that  the  young 
man  was  in  this  country,  and  the  attachment  of  this 
country  to  his  father  was  well  known.  It  was  cir- 
culated, among  these  devils,  that  the  president  took 
no  notice  of  the  lad,  because  he  loved  the  British 
and  hated  the  French.'  The  inquiry  has  proved  the 
falsehood  of  these  insinuations  ;  and  the  president  has 
on  this  occasion,  as  on  every  other,  been  found  the 
good  as  well  as  the  great  man.  The  letter  of  the 
young  Lafayette  is  well  written,  and  does  honor  to  a 
youth  of  fifteen."  — ("~P.  S.  May  2.  We  have  at 
length  taken  the  question  on  appropriating  for  the 
British  treaty  in  the  house,  and  have  had  a  complete 
victory.  We  carried  it  fifty-one,  besides  the  speaker, 
to  forty-eight.  They  endeavored  to  obtain  a  sen- 
tence of  condemnation  against  the  treaty,  but  could 
not  obtain  it.  We  expect  the  session  will  close  in 
three  or  four  weeks.  They  will  probably  attempt 
some  other  mischief,  though  God  knows  what  it  will 
be  ;  but  I  trust  they  will  be  disappointed  in  all  their 


1  Any  one  who  reads  Washington's  letters  to  Mr.  Cabot  and  others, 
respecting  the  young  Lafayette  (see  Sparks's  Washington,)  will  wonder 
how  so  impudent  a  calnmny  could  have  been  got  up. 


LIFE    OF    JUDGE    SMITH.  99 

machinations.  The  sovereign  people  are  with  us ; 
and  we  are  told  that  in  Virginia  they  are  on  the  right 
side,  and  that  petitions  will  flow  in  from  that  quarter 
this  week.'^j 

To  the  same,  10th  May.  "  I  am  anxious  to  be 
with  you ;  a  session  of  five  or  six  months  becomes 
very  tedious,  and  especially  such  an  one  as  this, 
which  agitates  all  the  passions  of  the  human  mind. 
I  do  not  believe  that  the  like  will  ever  happen  again. 
Good  men  will  soon  become  tired  of  a  government 
which  requires  constant  propping  and  shoring  up. 
The  action  of  the  sovereign  people  on  the  members 
of  our  house  carried  the  British  treaty.  We  cannot 
expect  that  the  people  will  always  be  wiser  than  the 
government ;  on  this  occasion  they  have  been  so. 
We  are  informed  that  the  people  at  the  northward, 
roused  like  a  giant  refreshed  with  wine,  are  fierce  for 
the  government." 

Early  in  May  Mr.  Smith,  in  company  with  his 
friend,  Mr.  Ames,  who  made  the  journey  for  the 
benefit  of  his  health,  visited  at  Bethlehem  the  Society 
of  United  Brethren.  In  a  very  lively,  pleasant  letter, 
giving  an  account  of  his  visit,  to  his  brother,  after  de- 
scribing the  other  parts  of  the  establishment,  he  adds  : 
"  On  i^unday  we  were  conducted  by  the  bishop  to 
the  chapel,  and  were  greatly  edified  by  a  very  long 
orthodox  sermon  in  the  German  language.  The 
music  we  could  understand  without  an  interpreter. 
They  had  a  pretty  band  —  an  organ,  violins,  hautboy, 
clarinet,  &c.,  and  played  well.  The  scene  shifted. 
At  twelve  o'clock  we  had  a  sermon  in  English.  But 
the  best  of  it  was  the  audience  —  seventy  or  eighty 


100  LIFE     OF     JUDGE     SMITH. 

charming,  divine  little  girls,  belonging  to  the  board- 
ing school,  from  Philadelphia,  New  York,  Baltimore, 
&c.,  from  nine  to  fifteen,  dressed  in  uniform,  and 
many  of  them  very  handsome.  You  know  my  pas- 
sion for  these  blossoms  of  innocence  and  beauty.  By 
the  appearance  of  the  company,  I  thought  myself  in 
heaven.  I  was  in  love  with  a  dozen  of  them  succes- 
sively, before  the  exercises  were  ended.  We  visited 
their  chambers.  They  played  on  the  piano-forte,  and 
sung  to  us.  This,  you  may  say,  finished  what  their 
eyes  began,  and  did  my  business  completely.  I  left 
them  with  a  heavy  heart,  or  to  speak  more  properly, 
with  no  heart  at  all,  —  vowing  that  I  would  and  will 
be  married,  and  with  the  assistance  of  the  Deity  who 
presides  over  matrimony,  have  at  least  a  dozen  sweet 
little  girls  of  my  own. 

"  The  discipline  of  manners  and  morals  which  per- 
vades this  society,  extends  to  the  young  ladies  of  the 
boarding-school.  I  never  saw  so  much  good  order 
and  propriety  of  behavior  in  the  same  number  of  per- 
sons of  any  age  or  sex.  Do  not  understand  me  as 
approving  all  the  customs  of  these  good  people.  That 
is  an  abominable  one,  which  interposes  a  barrier  be- 
tween the  sexes,  and  cuts  off  all  intercourse.  I 
have  myself  derived  so  much  pleasure,  and  (if  you 
will  allow  me)  I  will  add,  improvement  in  morals, 
from  the  society  of  the  '  last  and  best  of  all  God's 
works,'  that  I  can't  endure  the  thought  of  having  the 
dear  creatures  shut  up  and  secluded  from  the  world. 
Don't  laugh,  but  look  grave,  and  I  will  assure  you 
that  in  all  my  castles  of  happiness,  (and  I  build  a 
great  many,)  one  of  this  charming  sex  makes  a  con- 


"V 

LIFE     OF     JUDGE     SMITH.  101 

spicuous  figure.  I  will  not  inhabit  the  finest  castle 
that  ever  my  own  imagination  built,  (and  I  can  beat 
Inigo  Jones,  and  every  other  architect  that  ever  lived, 
in  the  castle  building  way,)  unless  she  will  consent 
to  be  the  mistress  of  it. 

"  I  ought  not  to  omit  a  circumstance  which  shows 
the  disposition  of  these  good  people  to  keep  the  sexes 
apart.  In  the  place  where  their  dead  are  deposited, 
they  have  drawn  a  line,  and  are  extremely  careful 
not  to  mingle  the  , bodies  of  the  sexes.  I  ridiculed 
this  extreme  caution  in  conversing  with  friend  Tho- 
mas, and  told  him  that  as  their  people  were  so  very 
chaste  while  living,  I  thought  they  might  be  safely 
trusted  when  dead.  He  seemed  to  think  that  this 
was  one  of  the  cases  in  which  too  much  caution 
could  not  be  used.  At  the  most,  it  was  justifiable 
on  the  principles  of  uniformity. 

"  Will  you  be  so  good  as  to  excuse  this  long  epistle  ? 
I  could  not  resist  the  desire  of  giving  you  some  ac- 
count of  a  visit  which  has  afforded  me  so  much  plea- 
sure. I  am  sensible  that  my  picture  falls  very  short 
of  the  things  I  have  attempted  to  describe,  and  if 
you  should  happen  to  fall  asleep  before  you  get 
through,  I  can't  help  it.  Mr.  King  is  this  day  ap- 
pointed minister  plenipotentiary  to  the  court  of  Lon- 
don, in  the  room  of  Mr.  Pinckney,  who  returns  to  this 
country.  I  have  much  pleasure  in  this  appointment, 
because  I  esteem  the  man,  and  am  sure  he  will  do 
honor  to  our  country.  I  regret  that  he  leaves  the 
senate.  I  send  you  Ames's  speech  ;  it  is  much  ap- 
plauded, and  thought  to  be  the  most  popular  that 
ever  was  delivered  in  this  country.  The  25th  is  the 
9* 


10/i  LIFE     OF     JUDGE     SMITH. 

day  of  adjournment.  I  am  inclined  to  believe  it  will 
be  further  protracted,  say  to  the  30th.  Adieu,  my 
dear  friend." 

A  wish  expressed  in  this  letter  was  nearer  its  fulfil- 
ment, than  the  writer  at  the  time  could  have  sup- 
posed. The  divine  woman,  mentioned  in  a  letter  to 
Mr.  Fletcher,  nearly  a  year  and  a  half  before,  was 
Miss  Eliza  Ross,  of  a  respectable  family  in  Bladens- 
burg,  Maryland,  who  was  then  boarding  with  her  sick 
mother  in  the  same  house  with  Mr.  Smith.  He  became 
exceedingly  interested  in  her,  and  was  pained  to  learn 
that  she  was  already  engaged.  The  following  frag- 
ments, containing  the  only  attempts  at  poetry  that  I 
have  found  among  his  writings,  may  show  something 
of  his  feelings. 

"  To  Adam,  Paradise  was  given, 
Blooming  with  all  that  charms  the  sense  : 
Of  fruits  —  one  only  was  forbidden, 
And  that  occasioned  sore  complaints. 

How  much  seTerer  is  my  fate 

Than  his  !  unjust!  how  could  he  grieve? 

He  was  denied  the  precious  fruit, 

But  I,  alas !  deprived  of  Eve. 

Nay  more,  severer  still  my  case, 

A  double  pain,  without  alloy  ; 

The  fruit  that  I  'm  forbid  to  taste, 

Another  freely  may  enjoy."  J.  S. 

December  17,  1794. 

To  Delia,  23d  December,  1794.  "It  would  be 
affectation  in  my  charming  girl  to  pretend  that  she 
did  not  understand  what  would  have  been  my  wish, 
in  case  I  had  dared  to  express  it,  in  the  conversation 


LIFE     OF     JUDGE     SMITH.  103 

at  the  tea-table.  Mrs.  R.  chose  wealth.  My  wish 
comprehends  everything.  Is  it  wrong,  Delia,  to  wish 
for  what  we  never  can  possess  ?  If  it  is,  I  am  guilty  ; 
chide  me  like  a  sister.  I  have  always  told  you  that 
you  would  find  me  a  very  bad  brother.  There  is  a 
difference  between  hopes  and  wishes.  Hopes  I  have 
none.  Chide  me  too,  for  the  following  lines.  They 
have  no  pretension  to  poetical  merit.  They  are  al- 
most an  impromptu.  They  have  in  short  nothing  to 
recommend  them,  except  that  they  come  from  a  heart 
too  much  Delia's  to  be  anything  but  truth  and  sin- 
cerity. 

THE    WISH,    OR    PETITION. 

"  If  Jove  should  condescend  to  grant 
What  he  could  spare,  and  /most  want, 
Think  you  I  'd  ask  for  wealth  or  fame, 
The  world's  applause,  a  hero's  name, 
Or,  what  is  still  to  be  preferred 
By  virtuous  minds,  with  wisdom  stor'd, 
Some  friends  to  cheer  in  ev'ry  trouble, 
My  griefs  to  halve,  my  joys  to  double, 
A  troop  of  friends  to  gild  my  days 
With  pleasure,  happiness  and  ease  ? 
One  single  boon  I  'd  ask  great  Jove  : 
Incline  my  Delia's  heart  to  love ; 
All  my  ambition,  wealth  and  fame, 
Are  center'd  in  her  charming  name  : 
My  wishes  then  are  gratified  ; 
To  me  what  is  the  world  beside  ? 
He  who  has  Delia 's  rich  to  excess  ; 
The  world  when  taken  from  his  store, 
Can  never  make  his  wealth  the  less, 
When  added  —  still  he  has  no  more. 
Tuesday  evening,  December  23,  1794.  J.  S. 

These  and  other  expressions  of  yet  more  ardent 
admiration,  devotedness  and  affection,  such  as  might 


104  LIFE     OF     JUDGE     SMITH. 

overwhelm  with  confusion  any  but  a  lady  educated 
in  the  school  of  Sir  Charles  Grandison  and  Lady 
Harriet,  were  answered  firmly,  but  always  with  deli- 
cacy and  tenderness.  The  correspondence,  as  between 
brother  and  sister,  was  kept  up  through  the  winter  by 
him  with  the  most  passionate  zeal ;  but  on  his  re- 
turn to  New  Hampshire  gradually  died  out.  In  the 
mean  time  she  had  returned  to  Bladensburg,  and 
either  through  her  lover's  unworthiness  or  a  change 
in  her  own  affections,  found  herself  freed  from  her 
former  engagement.  About  the  middle  of  May,  Miss 
Ross  came  to  Philadelphia,  and  in  a  few  days  wrote 
to  Mr.  Smith  a  note,  in  which,  after  speaking  of  her 
mother's  feeble  health,  she  says,  "  My  sister  will  leave 
me  in  a  day  or  two  ;  I  have  very  few  acquaintances, 
and  this  is  the  time  when  the  company  of  a  friend 
would  be  most  agreeable.  In  you  I  expect  that 
friend.  I  read  over  your  letters  in  which  you  pro- 
mise me  your  esteem  forever.  I  will  not,  cannot,  for 
a  moment,  think  I  have  lost  it,  when  to  retain  my 
own  has  cost  me  so  much  unhappiness."  They  met, 
and  understood  each  other.  It  is  not  worth  the  while 
to  be  more  particular,  or  to  quote  more  largely 
from  letters  written  with  reference  to  the  most 
delicate  and  sacred  of  human  relations.  Mr.  Smith, 
near  the  close  of  his  life,  had  his  correspondence 
with  her  bound  in  a  volume,  which  he  thus  very  justly 
described  :  "  These  letters  show  real  fervor  and  at- 
tachment, and  marks  both  of  strong  affection  and 
passion  ;  but  they  are  little  suited  to  the  general  eye. 
It  is  the  tendency  of  all  strong  feeling,  from  dwelling 
constantly  on  the  same  idea,  to  be  monotonous  ;  and 


LIFE     OF     JUDGE     SMITH.  105 

those  often-repeated  vows  and  verbal  endearments, 
which  make  the  charm  of  true  love-letters  to  the  par- 
ties concerned,  make  them  cloying  to  others." 

At  the  close  of  the  session,  Mr.  Ames  proposed  to 
Mr.  Smith  to  join  him  in  an  excursion  to  Virginia, 
but  he  felt  obliged  to  decline  the  proposal  and  re- 
turn home.  He  arrived  at  Amherst,  New  Hamp- 
shire, the  llth  of  June,  and,  on  the  following  Wed- 
nesday, "  the  honorable  judges  of  the  court  of 
common  pleas,  then  sitting  in  this  town,  the  gentle- 
men of  the  bar,  the  grand  jury,  and  a  number  of 
respectable  citizens  of  this  and  the  neighboring  towns, 
met  at  the  hall  of  Dr.  Samuel  Curtis,  and  presented 
the  following  address  : '  '  It  is  with  singular  pleasure 
we  congratulate  you  on  your  return  from  our  na- 
tional councils.  Language  can  hardly  express  the 
satisfaction  we  feel  in  the  part  you  have  taken. 
When  our  peace,  happiness  and  prosperity  were  at 
hazard ;  when  our  national  honor  was  tottering,  and 
in  immediate  danger  of  being  sacrificed ;  when  dis- 
cord, anarchy,  and  war,  with  all  their  horrors,  were 
entering  upon  the  peaceful  borders  of  America,  — 
your  patriotic  exertions  were  not  wanting  to  rescue 
her  from  a  situation  so  humiliating,  so  ruinous,  so 
distressing.  Accept,  sir,  our  most  cordial  thanks. 
Long  may  you  participate  in  that  happiness,  so  hon- 
orably and  substantially  secured  to  your  fellow-cit- 
izens.' " 

To  this  address  he  replied  in  a  few  words,  express- 
ing his  gratification  that  the  course  which  his  own 

1  Village  Messenger,  (Amherst,)  June  21,  1796. 


106  LIFE    OF    JUDGE    SMITH. 

judgment  and  conscience  had  recommended  should 
meet  the  approbation  of  his  friends.  "  Hilarity," 
the  account  continues,  "  with  order,  eminently  dis- 
tinguished the  evening,  and  the  whole  concluded 
with  the  most  perfect  harmony  and  satisfaction." 

Mr.  Smith's  account  of  this  matter  is  given  in  a 
letter  to  Miss  Ross,  dated  26th  July,  1796.  "  Yes- 
terday I  visited  some  of  my  friends  in  a  neighboring 
town,  and  received  many  compliments  for  my  politi- 
cal conduct  the  last  session.  I  omitted,  I  believe,  in 
my  former  letters  to  tell  you  that  on  my  arrival  at 
Amherst,  (not  far  from  where  I  live,)  a  farce  of  the 
same  kind  was  acted  in  public  by  the  court,  the  bar, 
and  some  of  the  principal  inhabitants  of  the  county, 
in  which  your  friend  played  harlequin.  If  I  could 
have  found  any  window  to  jump  out  at,  I  believe  I 
should  have  ventured.  I  am  but  an  indifferent  actor 
at  the  best ;  was  not  fond  of  the  play,  and  have  no 
ambition  to  play  the  principal  part.  I  don't  pretend 
to  be  indifferent  to  public  opinion.  He  must  be  a 
bad  man,  who  does  not  wish  for  the  praises  of  the 
good  ;  but  this  I  can  say  with  the  strictest  truth, 
that  I  should  prefer  an  address  from  my  Eliza,  ap- 
proving of  me  in  my  private  character,  to  one  from 
the  whole  state  of  New  Hampshire,  approving  my 
political  conduct.  I  can  be  happy  without  the  .one  ; 
I  should  be  miserable  without  the  other.  Eliza,  I  am 
tired  of  political  life,  and  wish  to  quit  it." 

The  allusion  in  the  newspaper  account  to  the 
order  and  harmony  of  the  meeting  was  not,  perhaps, 
so  unnecessary  as  one  might  suppose  What  follows 
was  written  from  the  same  place,  in  a  private  letter 


LIFE    OF   JUDGE    SMITH.  107 

to  Mr.  Smith,  by  a  prominent  lawyer,  three  months 
before  ;  and,  after  making  all  the  allowances  we  can 
for  humor  and  imagination,  it  certainly  leaves  behind 
an  impression,  anything  but  favorable  to  the  charac- 
ter of  the  bar  for  temperance.  "  I  will  write  about 
the  court  and  bar ;  and  firstly  of  the  court.  Judge 

wore  a  new  wig,  alias  a  scratch,  which  was, 

upon  the  whole,  tolerably  ridiculous,  especially  as  it 
was  frequently  made  to  change  its  position,  to  our  no 
small  amusement.  As  to  the  rest,  I  will  say  no- 
thing. Gordon  had  the  bar  to  dine  with  him  on 
Thursday,  and  it  happened  that  I  had  previously 
asked  the  judges  to  dine  with  me,  and  therefore 
missed  of  much  pleasure  as  well  as  wine,  that  I 
should  have  enjoyed  at  his  house.  He  endeavored 
to  get  all  his  brethren  drunk,  and,  it  not  being  a  very 
difficult  undertaking,  he  succeeded  very  well  with 
respect  to  them  and  himself  too.  About  half-past 
three  in  came  the  whole  fraternity,  with  Judge  D. 
at  their  head,  who  was  the  soberest  man  among 
them,  (what  think  you  of  the  others  ?)  ready  to  give 
the  fraternal  hug  even  to  old  K.  himself.  D.  gog- 
gled to  the  court.  A.  and  S.  were  silent  for  the 
best  of  reasons ;  they  could  not  speak.  C.  and  W. 
quarrelled,  and  threatened  to  fight.  Gordon  laughed 
at  everything  and  everybody.  B.  and  S.  D.  Jr., 
argued  a  case,  to  the  great  satisfaction  of  themselves. 
Clagett  fell  asleep,  and  Ben  Champney  made  poetry. 
N.  G.  stole  a  few  writs,  and  Thompson  made  up  his 
large  bills  of  costs.  Old  K.  broke  all  his  deputy- 
sheriffs,  and  took  care  of  the  jury  himself,  to  save  the 
fees." 


108  LIFE    OF    JUDGE    SMITH. 

The  summer  and  autumn  of  1796  were  spent  by 
Mr.  Smith,  as  he  had  before  spent  the  intervals  be- 
tween the  sessions  of  congress,  attending  the  Hills- 
borough  courts,  and  making  his  home  at  his  father's, 
where  he  lived  in  the  most  simple  manner,  and  at 
very  small  expense.  The  great  object  of  interest  at 
Philadelphia  during  the  session  of  1796  and  1797, 
was  the  retirement  of  Washington,  and  the  election 
of  his  successor.  Some  little  idea  of  what  engaged 
Mr.  Smith's  thoughts,  may  be  gained  from  the  fol- 
lowing extracts. 

To  Samuel  Smith,  4th  December,  1796.  "  I  ar- 
rived here  two  days  ago,  in  very  good  health.  The 
weather  was  very  cold,  but,  contrary  to  my  usual 
experience,  I  suffered  little  on  that  account.  As  to 
lodgings,  I  am  not  so  happy.  My  old  friend  Ames 
lives  with  a  gentleman  in  this  city  as  a  guest,  not  as 
a  boarder  ;  consequently  I  shall  be  deprived  of  his 
society  as  an  inmate,  and  I  have  found  him  the  most 
agreeable  companion.  I  have  just  received  a  letter 
from  my  Dulcinea,  and  I  am  all  impatience  to  visit 
her.  I  think  I  shall  set  out  some  time  the  latter  end 
of  this  week.  All  the  talk  of  this  city  is  about 
Citizen  Adet,  and  the  election  of  president.  These 
subjects  are  indeed  connected,  as  nothing  can  be 
more  evident  than  that  our  sister,  the  French  repub- 
lic, interests  herself  very  much  in  the  question.  She 
wishes  we  may  have  a  good  one,  fears  our  discretion 
or  capacity  to  make  a  suitable  choice,  and  kindly 
uses  every  effort,  that  Mr.  Jefferson  may  be  the  man. 
I  spent  last  evening  with  Mr.  Adams  ;  he  has  been 
most  scandalously  vilified  in  the  public  papers,  and 


LIFE    OF    JUDGE    SMITH.  109 

though  he  is  a  philosopher,  yet  he  has  so  much  of 
the  man  about  him,  that  I  think  he  feels  sore,  and 
will  be  sorer  still,  if  Jefferson  reaches  the  goal  before 
him.  I  think  Adams's  chance  the  best,  still  it  is  but 
a  chance.  We  are  anxious  and  distracted  with  ap- 
prehensions. I  hope  all  will  be  well." 

To  Miss  E.  Ross,  4th  December,  1796.  "  I  left 
Boston  22d  November,  with  my  friend,  Mr.  Thacher, 
an  odd  mortal  you  have  seen  at  Mrs.  Ramsey's.  On 
the  road  to  Springfield,  (one  hundred  miles,)  fortune, 
to  make  amends  for  the  badness  of  the  weather, 
treated  us  with  a  succession  of  incidents,  which  made 
the  journey  extremely  pleasant.  At  Springfield  the 
scene  shifted,  but  our  good  fortune  still  continued. 
Dr.  Ames  '  and  Mr.  Foster  were  my  only  company 
to  New  York.  As  we  were  in  a  close  carriage,  we 
suffered  little  from  the  unusual  coldness  of  the  season. 
I  need  not  say  the  journey  was  amusing.  The  god- 
dess, as  if  determined  to  acquire  a  character  for  con- 
stancy and  stability,  increased  our  pleasures  at  the 
same  time  that  she  increased  the  number  of  our 
company  from  New  York  to  Philadelphia.  The 
journey,  independent  of  the  idea  that  every  day 
brought  me  nearer  to  you,  was  exceedingly  pleasant." 

To  Samuel  Smith,  7th  December,  1796.  "  I  en- 
close you  the  president's  speech,  delivered  to-day  in 
the  house  of  representatives,  to  a  very  crowded 
audience.  The  idea,  that  we  shall  see  his  face  no 
more  in  that  place,  threw  a  solemnity,  and  even  sad- 
ness, into  every  countenance.  He  appeared  to  be 

1  Fisher  Ames,  LL.D.,  and  the  Hon.  Dwight  Foster. 
10 


110  LIFE     OF     JUDGE     SMITH. 

affected  with  it  himself,  and  discovered  an  unusual 
degree  of  sensibility.  For  a  few  moments,  faction, 
jacobinism,  and  French  politics,  seemed  to  hide  their 
heads,  and  I  believe  I  may  venture  to  say,  we  all  felt 
as  Americans  ought  to  feel." 

To  Miss  E.  Ross,  7th  Dec.  1796,  Wednesday. 
"  The  weather  is  threatening,  but  I  have  determined 
to  set  out  on  Saturday.  On  Sunday  I  am  promised 
to  reach  Baltimore.  Monday  evening  I  invite  myself 
to  drink  tea  with  you.  To-day  we  had  the  presi- 
dent's speech.  The  idea  that  '  we  shall  see  his  face 
no  more'  mingled  itself  with  the  business  of  the 
day,  and  threw  a  solemnity  and  sadness  over  the 
scene.  Jacobinism,  faction,  and  French  politics 
were  for  a  moment  hushed ;  and  I  am  confident, 
while  the  speech  was  delivering,  the  whole  house  felt 
as  Americans  should  feel,  —  all  gratitude  to  Heaven 
for  raising  up  this  wonderful  man  for  our  deliverance, 
and  grieved  to  see  him  about  to  retire  from  the  helm. 
Excuse  this  political  effusion.  When  we  have  no- 
thing else  to  say,  I  will  talk  politics  with  you  at  B. 
Till  Monday  eve,  adieu  ;  may  Heaven  bless  my  Eliza 
with  the  accomplishment  of  all  her  wishes." 

To  Miss  E.  Ross.  "  What  a  blockhead  is to  be 

learning  Italian  when  he  ought  to  be  learning  English, 
as  you  well  observe,  or  laboring  to  retrieve  his  affairs, 
and  pay  his  honest  creditors.  This  desire  to  get  a 
smattering  of  a  great  many  things,  and  nothing  per- 
fect, is  very  ridiculous.  I  was  pleased  with  an  ob- 
servation of  Mrs.  Washington's,  which  was  very 
severe,  without  any  intention  of  being  so  on  the  part 
of  the  old  lady.  Mrs.  S.  was  saying,  that  she  had 


LIFE    OF    JUDGE    SMITH.  Ill 

such  a  master,  and  such  another,  to  teach  her  daugh- 
ter this  language  and  that ;  to  play  on  various  instru- 
ments, and,  in  short,  you  would  suppose  that  she  was 
to  be  complete  mistress  of  the  whole  circle  of  sci- 
ence. Mrs.  W.  replied,  that  it  had  been  her  en- 
deavor to  have  Nelly  taught  but  few  things,  so  that 
she  might  stand  the  better  chance  to  excel  in  any- 
thing ;  that  she  thought  it  quite  enough  for  a  lady  to 
play  on  one  instrument,  and  that  it  was  very  seldom 
they  played  tolerably  on  any." 

To  Samuel  Smith,  28th  Jan.  1797.  "Since  I 
wrote  you  last,  a  melancholy  event  -has  taken  place. 
The  dwelling-house  of  Mr.  Andrew  Brown,  printer 
of  the  Philadelphia  Gazette,  (in  which  was  his  print- 
ing-office,) was  yesterday  morning  discovered  to  be 
on  fire.  Every  exertion  was  made  to  save  it,  and  the 
exertions  so  far  succeeded,  that  the  printing-office  re- 
ceived no  damage,  and  the  dwelling-house  but  little. 
The  calamity  fell  on  the  inhabitants.  Mrs.  B.  and 
the  three  children  were  suffocated,  and  expired  im- 
mediately. Mr.  B.,  in  endeavoring  to  save  them, 
was  so  dreadfully  burnt,  that  he  died  this  morning. 
Thus  the  whole  family  have  fallen  victims  to  the  de- 
vouring element.  What  a  sad  reverse  of  fortune  ! 
They  had  risen  from  want  to  a  state  of  great  afflu- 
ence, in  a  very  few  years ;  and  Mr.  B.  intended  soon 
to  leave  off  business.  The  number  of  accidents  by 
fire  are  very  great.  It  seems  as  if  Heaven  in  wrath 
had  doomed  mankind  to  destruction,  and  the  French 
in  Europe,  and  the  fire  in  this  country,  were  the  in- 
struments of  his  vengeance.  I  feel  a  thing  of  this 
kind  with  unusual  interest,  considering  how  you  are 


]  12  LIFE    OF    JUDGE    SMITH. 

circumstanced.  I  have  just  heard  that  Judge  Farrar 
has  resigned  his  seat  on  the  bench.  How  has  this 
happened  ?  It  will  puzzle  the  governor  and  council 
to  put  in  so  good  a  man." 

To  the  same,  3 1st  Jan.  1797.  "I  now  inclose  a 
copy  of  the  president's  message  on  French  affairs, 
with  the  papers  accompanying.  When  the  remain- 
der of  this  interesting  paper  comes  from  the  press,  I 
will  forward  it.  This  publication  will,  I  am  confi- 
dent, have  good  effects.  It  will  serve  to  place  in  the 
true  point  the  conduct  and  views  of  the  French 
government  towards  this  country,  and  it  must,  I 
think,  completely  vindicate  our  government  against 
the  charges  of  M.  Adet  and  his  venal  tools.  It  will 
promote  American  feelings,  which  are  much  needed, 
and  increase  real  patriotism,  which,  after  all,  is 
rather  a  scarce  virtue,  and  is  generally,  like  true  re- 
ligion, at  the  lowest  ebb,  when  there  is  the  most  noise 
about  it.  Our  Palinurus  is  about  to  quit  the  helm  ; 
still  I  think  he  will  be  useful  to  us.  He  has  left  be- 
hind some  excellent  instructions,  and  a  chart  of  the 
rocks  and  quicksands  on  our  coasts.  I  hope  we  shall 
have  the  wisdom  to  profit  from  his  experience,  and, 
though  the  war  in  Europe  will  probably  continue 
through  this  year,  we  shall  steer  our  little  bark  safely 
through  the  storm  of  European  war  and  European 
madmen.  We  shall  be  injured,  but  not  destroyed." 

To  Miss  E.  Ross,  6th  Feb.  1797.  "  I  spent  yester- 
day in  a  manner  which  I  am  sure  my  Eliza  would 
approve.  It  was  a  delightful  day,  and  I  accepted  an 
invitation  from  my  friend  Mr.  Ames,  to  ride  with 
Mr.  Rundle  and  him.  Mr.  R,  is  polite  enough  to 


LIFE    OF    JUDGE     SMITH.  113 

offer  me  his  horses  at  any  time,  and  I  shall  certainly 
avail  myself  of  his  very  friendly  offer.  I  dined  with 
them  enfamille.  It  was  domestic  and  charming.  In 
the  afternoon  and  evening  we  had  the  greatest  va- 
riety imaginable.  We  spent  a  few  minutes  with 
Dr.  Priestley,  and  talked  divinity  ;  with  the  vice- 
president  and  judges  of  the  supreme  court,  and 
talked  politics ;  drank  tea  with  Mrs.  Listen,  and 
talked  scandal  and  treason  ;  and  the  remainder  of 
the  evening  at  Mr.  Wolcott's,  and  had  a  very  friendly 
chit-chat,  a  la  mode  New  England." 

To  the  same,  Feb.  8th,  1797,  Wednesday,  P.  M. 
"  I  am  just  returned  from  the  hall.  We  have  had  a 
splendid  exhibition.  The  two  houses  assembled  in 
the  chamber  of  the  house  of  representatives,  to  attend 
the  opening  and  examining  the  votes  for  president 
and  vice-president.  The  result  has  been  long  since 
known.  Mr.  Adams,  as  president  of  the  senate, 
made  the  declaration  that  John  Adams  was  chosen 
president,  and  Thomas  Jefferson  vice-president. 
There  was  a  great  concourse  of  people,  and  a  very 
brilliant  circle  of  ladies.  Being  near-sighted,  I  re- 
ceived no  injury  from  the  great  display  of  female 
charms  on  the  occasion,  but  came  away  with  a  heart 
just  as  whole  as  I  went.  The  only  thing  remarkable 
in  the  ceremony  of  the  day,  and  what  we  did  not  ex- 
pect, was  the  concluding  scene,  which  consisted  of  a 
short  prayer,  a  la  mode  New  England,  by  Mr. 
Adams.  We  were  struck  with  amazement,  and  some 
of  your  southern  gentry  prayed,  who  never  prayed 
before." 

To  Samuel  Smith,    llth   Feb.   1797.     "I  write 


114  LIFE    OF    JUDGE    SMITH. 

three  times  a  week  to  B.,  and  regularly  three  times  a 
week  receive  answers.  These  form  my  principal 
happiness.  1  can  hardly  persuade  myself,  I  am 
within  four  weeks  of  matrimony.  I  thank  you  for 
the  good  wishes  expressed  in  your  last  letter  for  my 
happiness.  I  have  no  doubt  but  that  I  shall  be  as 
happy  as  it  is  possible  for  man  to  be  with  an  amiable 
wife.  I  am  heartily  tired  of  Philadelphia  ;  the  time 
seems  long,  and  I  do  not  enjoy  so  good  health  as  at 
the  beginning  of  the  session.  I  ascribe  it  to  the  want 
of  exercise  and  free  living.  My  wishes  are  never  to 
attend  another  session." 

To  Miss  E.  Ross,  Feb.  22d.  "  It  is  now  eleven 
o'clock,  and  I  am  just  returned  from  the  ball.  There 
were  assembled  at  Ricket's  amphitheatre  about  five 
hundred  ladies  and  a  greater  number  of  gentlemen. 
The  ladies  were  very  elegantly  dressed.  I  thought 
there  was  more  variety  than  I  have  before  seen  in  the 
dresses.  This  is  a  proof  that  they  have  made  some 
progress .  rn  taste,  if  the  dresses  are  becoming,  and 
suit  the  person,  complexion,  &c.  The  president  and 
Mrs.  W.  were  in  very  good  spirits,  and,  I  am  per- 
suaded, have  not  spent  so  agreeable  an  evening  for  a 
long  time.  Every  countenance  bespoke  pleasure  and 
'approbation.  Even  democrats  forgot  for  a  moment 
their  enmity,  and  seemed  to  join  heartily  in  the  fes- 
tivity of  the  day.  My  heart,  I  assure  you,  my  love, 
was  in  no  danger  from  the  constellation  of  beauty 
and  elegance,  which  the  female  actors  on  this  showy 
stage  exhibited.  I  did  not  think  I  could  be  so  indif- 
ferent to  beauty." 

To  S.  Smith,  23d  Feb.   1797.     "Yesterday  was 


LIFE    OF    JUDGE    SMITH.  115 

the  anniversary  of  the  president's  birth-day.  It  was 
celebrated  with  unusual  show.  The  political  sun  of 
the  greatest  and  best  of  men  is  setting  with  a  splen- 
dor the  world  never  witnessed  before.  The  highest 
respect  was  paid  him  by  all  classes,  from  the  president 
elect  to  the  scavenger  in  the  streets,  with  a  very  few 
exceptions  of  the  partisans  of  France  and  anarchy. 
The  evening  exhibition  was  brilliant  indeed.  The 
largest  number  of  well-dressed  people  of  both  sexes 
I  ever  saw,  assembled  at  the  ball ;  every  face  wore 
the  appearance  of  joy,  and,  most  of  all,  that  of  the 
president  himself.  He  is  throwing  off  a  load,  which 
will,  I  fear,  prove  too  heavy  for  his  successor." 

A  day  or  two  before  the  close  of  the  session,  with- 
out waiting  to  witness  the  inauguration  of  the  new 
president,  and  the  sublime  spectacle  of  Washington 
casting  off  the  cares  of  public  life,  Mr.  Smith  set  out 
for  Maryland,  where,  on  the  8th  of  March,  he  was 
married  to  Miss  Eliza  Ross.  Her  father,  Alexander 
Ross,  a  sensible,  energetic  man,  Scotch  by  birth, 
had  died  before  Mr.  Smith's  acquaintance  with  the 
family,  and  her  mother,  Ariana  Brice,  from  one  of 
the  best  families  in  Maryland,  was  a  woman  of  a  rea- 
soning and  philosophic  turn  of  mind.  Mrs.  Smith  is 
said  to  have  been  a  remarkably  pretty  young  lady  ; 
but  her  beauty  was  of  that  delicate  kind  so  easily 
lost  by  ill  health,  and  the  rearing  of  a  family.  Her 
manners  were  graceful.  The  prudence  and  good 
sense,  which  her  lover  so  frequently  spoke  of  in  his 
letters,  as  well  as  her  attachment  to  him,  and  all  the 
duties  of  her  home,  continued  unabated  to  the  end. 
They  began  with  warm  mutual  affections,  and  with 


116  LIFE    OF   JUDGE    SMITH. 

simple  unambitious  views,  and  found  more  than  they 
had  hoped.  Her  great  difficulty  in  housekeeping 
arose  from  the  difference  between  the  circumstances 
of  her  early  education  at  the  south,  and  her  duties 
at  the  north.  She  had  been  brought  up  in  the 
midst  of  slavery,  with  the  habits  growing  out  of  it  ; 
and  during  the  thirty  years  she  remained  in  New 
England,  without  once  visiting  her  former  home,  she 
could  not  so  assimilate  herself  to  the  New  England 
modes  of  thought  and  life,  as  to  feel  perfectly  at 
ease. 

The  following  is  from  a  letter  written  by  Mr. 
Smith  to  his  brother,  two  days  after  his  marriage : 
March  10th,  1797.  "  I  am  set  down  to  write,  and 
can  truly  say  I  never  in  my  life  was  so  much  puzzled 
about  the  manner.  I  want  to  tell  you  that  I  am 
married,  and  consequently  a  happy  man.  But  as 
the  subject  is  perfectly  new  to  me,  and  happiness  no 
great  clarifier  of  the  brain,  I  foresee  that  I  shall  ac- 
quit myself  badly.  What  if  we  should  suppose  the 
information  given,  and  I  should  content  myself  with 
mentioning  only  the  time,  place,  &c.  Wednesday 
evening  was  the  time,  and,  as  our  dear  mother  is  cir- 
cumstanced, the  family  and  those  immediately  con- 
nected with  them,  were  the  only  witnesses  of  the 
solemn  act,  which  I  consider  as  the  most  happy  of 
my  life.  I  have  every  reason  to  be  pleased  with  the 
behavior  of  my  new  friends  and  relations.  I  forgot 
to  mention  that  three  miles  before  I  reached  Bladens- 
burg,  I  had  the  misfortune  to  lose  my  trunk,  with  all 
my  clothes,  of  the  value  of  two  hundred  dollars. 
The  fastening  untied,  and  some  very  great  knaves 


LIFE    OF    JUDGE    SMITH.  117 

happening  to  live  in  the  vicinity,  picked  it  up  before 
the  stage-driver  returned  to  look  for  it,  which  was  in 
less  than  fifteen  minutes.  This  is  the  conjecture. 
I  have  offered  a  reward  for  it,  but  have  not  as  yet 
had  any  success,  and  begin  to  despair  of  recovering 
it.  It  has  subjected  me  to  much  inconvenience,  as 
well  as  a  pretty  heavy  loss.  I  saved  nothing  but  my 
travelling  clothes.  This  loss  could  not  have  hap- 
pened at  a  more  unseasonable  time.  Luckily  I  had 
no  money  in  it,  and  unluckily,  very  little  anywhere 
else." 

The  accident1  occurring  at  such  a  time,  was  very 
severely  felt.  Among  the  articles  lost  was  a  pearl- 
colored  coat,  about  which  he  had  had  a  long  corres- 
pondence with  Miss  Ross,  who  insisted  upon  it  as 
essential  to  his  wedding  dress.  He  found  great  diffi- 
culty in  procuring  it,  and  asked  whether,  if  obliged 
to  appear  in  a  more  sombre  dress,  he  might  not 
make  up  for  what  was  wanting,  by  simpering  all  the 
time  during  the  ceremony.  But  the  lady  was  too 
much  in  earnest  to  be  put  off  so,  and  after  diligent 


1  Those  who  are  curious  in  such  matters,  may  be  interested  to  see 
what  were  the  articles  of  a  gentleman's  travelling  wardrobe,  under*  such 
circumstances.  "  A  light-colored  broadcloth  coat,  with  pearl  buttons. 
Breeches  of  the  same  cloth.  Ditto  black  satin.  Vest,  swansdown, 
buff  striped.  Ditto,  moleskin,  chequer  figure.  Ditto,  satin  figured. 
Ditto,  Marseilles,  white.  Ditto,  muslinet  figured.  Under  vest  faced 
with  red  cassimere.  Two  ditto  flannel.  One  pair  of  flannel  drawers. 
One  ditto  cotton  dilto.  One  pair  black  patent  silk  hose.  One  ditto 
white  ditto.  One  ditto  striped  ditto.  Ten  or  a  dozen  white  silk  hose. 
Three  pair  of  cotton  hose.  Four  pair  of  gauze  ditto.  A  towel.  Six 
shirts.  Twelve  neck  handkerchiefs.  Six  pocket  handkerchiefs,  one  of 
them  a  bandanna.  A  chintz  dressing  gown.  A  pair  of  silk  gloves. 
Ditto,  old  kid  ditto." 


118  LIFE    OF    JUDGE    SMITH. 

search  the  coat  was  found,  to  furnish  another  illus- 
tration of  the  vanity  of  human  wishes. 

In  a  letter  to  his  brother,  dated  17th  March,  1797, 
Mr.  Smith  says  :  "  I  saw  General  Washington,  as  he 
passed  through  this  town,  on  his  way  to  Mount  Ver- 
non,  two  days  ago,  and  spent  a  pleasant  hour  with 
him  alone.  He  was  undisguised  in  his  sentiments  of 
men  and  things,  and,  for  the  first  time  in  my  life,  I 
conversed  with  perfect  freedom  with  the  greatest  and 
best  of  men." 

A  few  weeks  after  this  Mr.  Smith  visited  Wash- 
ington at  Mount  Vernon.  He  arrived  there  late  in 
the  afternoon,  and  received  a  most  cordial  welcome 
from  Washington  and  his  lady,  the  latter,  "  at  this 
time,"  he  said,  "  a  squab  figure,  without  any  preten- 
sion to  beauty,  but  a  good  motherly  sort  of  woman." 
After  a  cup  of  excellent  tea,  &,c.  the  evening  passed 
in  conversation.  There  were  present,  besides  the 
family,  a  son  of  Lafayette,  and  another  French  gen- 
tleman. While  they  were  talking,  a  servant  came 
into  the  room  and  said  to  Washington,  "  John  would 
like  the  newspaper,  sir."  He  replied,  "you  may 
take  it,"  but  after  he  had  gone  out,  said,  "  he  had 
better  mind  his  work."  He  then  told  Mr.  Smith  a 
story  of  his  coachman,  a  long-tried  and  faithful  man. 
One  very  rainy  day  he  was  obliged  to  order  his  car- 
riage unexpectedly,  to  go  a  long  distance  on  business. 
After  getting  into  it  he  perceived  that  there  was  some 
delay  about  starting,  and  putting  his  head  out,  he 
saw  that  there  was  a  great  bustle  among  his  servants, 
who  were  trying  to  mount  the  coachman  on  the 
box,  and  with  much  difficulty,  at  length  succeeded. 


LIFE     OF     JUDGE     SMITH.  119 

"  What  is  the  matter  ?  "  asked  the  general.  The  ser- 
vants replied,  that  he  was  intoxicated ;  "  where- 
upon," said  Washington  to  Mr.  Smith,  "  I  was 
tempted  to  say  to  the  man  at  once,  be  gone  about 
your  business.  But  the  coachman  at  that  moment 
turned  round  and  said,  '  never  fear,  massa,  I  '11  drive 
you  safe.'  And  I  trusted  him,"  continued  Washing- 
ton, "  and  he  never  drove  better." 

At  about  half  past  nine,  Mr.  Smith  signified  his 
intention  of  retiring,  when  Washington  also  arose, 
and  taking  a  lamp,  led  the  way  to  a  most  comfortable 
apartment,  in  which  was  a  fire  brightly  blazing.  He 
assured  his  guest,  that  the  fire  would  be  "  perfectly 
safe,"  and  intimated  that  he  might  "  like  to  keep  his 
lamp  burning  through  the  night."  In  the  morning, 
after  breakfast,  Mr.  Smith  took  leave,  though  desired 
to  prolong  his  visit ;  and  a  very  urgent  invitation 
was  given,  that  he  should  "bring  his  bride  to  see 
them."  Horses  were  brought  to  the  door,  and  Wash- 
ington accompanied  him  some  miles  on  the  way. 
"  He  was  always,"  said  Mr.  Smith,  "  dignified,  and 
one  stood  a  little  in  awe  of  him." ' 

1  This  account  was  kindly  furnished  me  by  a  lady,  who  wrote  it  down 
the  evening  after  she  heard  it  from  Judge  Smith.  The  following  anec- 
dote, I  believe,  rests  on  unquestioned  authority.  It  was  told  to  Mr.  Mason 
by  the  Hon.  Joseph  Lewis,  who  was  for  thirty  years  a  member  of  congress, 
and  was  called  by  Mr.  Jefferson,  "  the  residuary  legatee  of  federalism 
in  Virginia."  Judge  Marshall  and  Judge  Washington  were  on  their 
way  to  Mount  Vernon,  attended  by  a  servant  who  had  the  charge  of  a 
large  portmanteau  containing  their  clothes.  At  their  last  stopping  place 
there  happened  to  be  a  Scotch  pedlar,  with  a  pack  of  goods  which  re- 
sembled their  portmanteau.  The  roads  were  very  dusty,  and  a  little 
before  reaching  the  general's,  they,  thinking  it  hardly  respectful  to  pre- 
sent themselves  as  they  were,  stopped  in  a  neighboring  wood  to  change 
their  clothes.  The  colored  man  got  down  his  portmanteau,  and  just  as 


120  LIFE    OF    JUDGE    SMITH. 

This  was  the  last  time  that  Mr.  Smith  met  Wash- 
ington, but  he  continued  through  life  to  cherish 
towards  him  feelings  such  as  he  had  for  no  other 
human  being.  He  pronounced  a  eulogy  upon  him 
at  his  death  ;  and  one  of  his  last  compositions  was  a 
lecture  on  his  private  character.  It  was  delightful  to 
witness  the  veneration,  amounting  almost  to  rever- 
ence, which  he  uniformly  expressed,  mingled,  as  the 
feeling  always  was,  with  the  sentiment  of  religious 
gratitude,  as  if  by  the  especial  hand  of  God,  he  had 
been  raised  up  for  his  country's  good.  And  all,  who 
follow  with  deep  interest  the  history  of  our  country 
step  by  step  through  the  war,  and  the  greater  perils 
that  succeeded  when  the  war  was  over,  must  with 
devout  joy  and  thanksgiving  recognize  the  influence 
of  the  great  man,  whose  character  rises  so  high,  and 
with  each  coming  generation,  will  rise  so  much 
higher,  not  only  above  all  others  with  whom  he  was 
connected,  but  above  his  own  position  as  the  head 
and  father  of  a  great  nation,  —  outshining  even  the 
splendor  of  his  actions  and  his  fame.  His  greatness 


they  had  prepared  themselves  for  the  new  garments,  out  flew  some 
fancy  soap  and  various  other  articles  belonging  to  the  pedlar,  whose 
goods  had  been  brought  on  instead  of  their  own.  They  were  so  struck 
by  the  consternation  of  their  servant,  and  the  ludicrousness  of  their  own 
position,  being  there  naked,  that  they  burst  into  loud  and  repeated 
shouts  of  laughter.  .  Washington,  who  happened  to  be  out  upon  his 
grounds  near  by,  heard  the  noise,  and  came  to  see  what  might  be  the 
occasion  of  it,  when,  finding  his  friends  in  that  strange  plight,  he  was 
so  overcome  with  laughter,  that  he  actually  rolled  upon  the  ground. 

Judge  Marshall  told  the  Hon.  Benjamin  Watkins  Leigh,  within  three 
months  of  his  death,  that  he  was  never  free  from  restraint  in  Washing- 
ton's presence  —  never  felt  quite  at  ease,  such  was  Washington's  state- 
liness  and  dignity. 


LIFE    OP    JUDGE    SMITH.  121 

was  not  dependent  upon  circumstances.  It  was  not 
Trenton,  nor  Yorktown,  nor  the  successful  termina- 
tion of  a  seven  years'  war,  nor  the  chief  command  in 
a  righteous  cause,  nor  the  highest  station  in  the  land, 
that  made  him  illustrious.  Other  men  have  been 
dwarfed  by  their  own  achievements,  'and,  on  ap- 
proaching them,  we  are  saddened  and  disappointed 
to  see  the  man  dwindling  away  before  the  magnifi- 
cent associations  that  history  has  gathered  round 
them,  as  when,  in  disinterring  from  a  pyramid  of 
Egypt  the  dusty  remains  of  an  ancient  king,  we  are 
pained  by  the  contrast  between  the  grandeur  of  the 
monument  and  the  meanness  of  'him  by  whom  it 
was  erected.  But  Washington  can  suffer  by  no 
such  comparison.  Through  whatever  avenue  of  il- 
lustrious deeds  and  high  associations  he  is  ap- 
proached, we  lose  nothing  of  our  admiration  and 
respect  for  him.  Great  as  were  his  office,  his  ac- 
tions, and  his  mission  upon  the  earth,  the  man  towers 
always  above  them  all.  In  his  presence  we  are  im- 
pressed only  by  himself.  Such  power  has  a  really 
great  and  good  man,  over  all  the  circumstances 
that  usually  attend  on  human  greatness.  He  whose 
influence  rests  on  a  foundation  like  this,  cannot 
pass  away  from  the  admiration  and  affection  of 
mankind.  Whatever  was  connected  with  him,  be- 
comes almost  sacred  to  us. 

It  is  not  long  since  I  first  saw  Mount  Vernon,  be- 
ing on  a  journey  from  the  south.  It  had  not  oc- 
curred to  me  that  we  should  pass  the  spot,  till  it  was 
announced,  and  I  saw  before  me  on  a  hill,  rising 
gently,  and  commanding  a  wide  view  of  the  river, 
11 


122  LIFE    OF   JUDGE    SMITH. 

the  home  of  Washington.  I  had  never  been  so 
affected  by  any  other  scene.  Battle  fields,  and  all 
such  places  have  disappointed  me.  But  here  were 
associations  too  strong  and  sacred,  a  quiet  domestic 
influence  in  the  place  itself,  so  harmonizing  with  his 
character,  that  I  almost  seemed  to  see,  sitting  on  his 
piazza,  or  walking  through  his  grounds,  the  man 
who  in  his  greatness  stands  so  widely  apart  from 
all  other  men  in  the  world's  history.  I  wished  to 
throw  myself  down  like  a  little  child,  and  weep. 
The  emotions  of  that  hour,  and  the  conversation  that 
followed  with  an  intelligent  Virginian,  who  was  sub- 
dued almost  to  tears,  I  shall  not  soon  forget.  And 
while  at  the  capital;  I  could  not  but  think,  how  dif- 
ferent would  be  the  standing,  and  how  different 
the  influence  going  from  them,  if  the  noisy  actors 
there,  who  boast  of  their  chivalry  and  call  them- 
selves our  national  rulers,  would  go  on  pilgrim- 
age to  Mount  Vernon,  there  to  learn  how  calm  and 
gentle  a  thing  is  the  highest  greatness  and  all  true 
dignity  of  mind. 


CHAPTER   V. 

1797—1801. 

FOURTH      TERM     IN     CONGRESS DIFFICULTIES     WITH 

FRANCE SETTLED     IN     EXETER U.     S.    DISTRICT 

ATTORNEY INTEREST     IN     POLITICS JUDGE     OF 

PROBATE. 

MR.  SMITH  had  now  completed  his  third  term  of  ser- 
vice in  congress.  His  position  in  the  house  was  grat- 
ifying to  his  feelings,  and,  with  his  experience  and 
his  attainments,  the  result  of  careful  study,  he  had 
been  constantly  rising  in  the  esteem  of  those  through- 
out the  country  whose  approbation  he  most  val- 
ued. He  was  on  pleasant  terms  of  personal  inter- 
course with  many  of  the  distinguished  men  of  his 
time  :  with  the  elder  Adams,  Oliver  Ellsworth  and 
John  Jay,  with  Alexander  Hamilton  and  John  Mar- 
shall, Rufus  King,  and  Charles  C.  Pinckney,  Timothy 
Pickering,  Samuel  Dexter,  and  Caleb  Strong ;  and 
met,  with  the  freedom  of  intimate  friendship,  Fisher 
Ames,  George  Cabot,  Robert  Goodloe  Harper,  Chris- 
topher Gore,  Oliver  Wolcott,  Theodore  Sedgewick, 
and  others,  whose  names,  now  less  familiar,  were 


124  LIFE     OF     JUDGE     SMITH. 

hardly  less  prominent  in  their  day.1  But  he  was  al- 
ways more  desirous  of  being  a  lawyer  than  a  states- 
man, and,  tired  of  public  life,  longed,  as  he  said,  "  to 
be  at  home,  seated  by  a  snug  fire  of  his  own  kindling, 
where  neither  business  nor  impertinent  visitors  should 
disturb  his  meditations."  He  had  determined  to 
withdraw  from  the  national  councils  and  attend  to 
the  practice  of  the  law.  But,  towards  the  close  of 
1796,  he  was  chosen  for  another  term  in  congress, 
almost  without  opposition,  having  a  considerably 
larger  number  of  votes  than  either  of  the  other  gen- 
tlemen, whose  names  were  upon  the  same  ticket. 
Since  he  had  determined  to  quit  public  life,  I  do  not 
know  why  he  permitted  himself  to  be  again  a  candi- 
date. The  reasons  given  in  the  following  letter, 
(18th  November,  1796,)  to  Miss  Ross,  are  not  quite 
satisfactory  :  "  Eliza,  you  are  quite  a  flatterer  ;  I 
never  was  very  unfriendly  to  flattery,  but  yours  is 
peculiarly  grateful.  You  do  not  spoil  me  as  you  be- 
gin to  fear  ;  your  praises  make  me  anxious  to  deserve 
them.  I  wish  to  owe  to  your  justice,  what  I  am 
afraid  I  must  now  attribute  to  your  partiality.  You 
told  me,  in  a  former  letter,  that  you  found  I  was  a 
candidate  for  congress,  and  that  you  thought  this 
irreconcilable  with  what  I  had  told  you  of  my  disin- 
clination for  public  life.  The  phrase  '  being  a  can- 
didate,' has  not  the  same  meaning  here  as  at  the 

1  Till  the  violent  contest  on  the  British  treaty  he  had  been  on  friendly 
terms  with  Madison,  and  found  him  always  very  obliging  in  imparting 
or  pointing  out  the  means  of  acquiring  information  on  political  subjects. 
At  that  time  he  had  no  communication  with  him,  and  believed  him  dis- 
honest ;  but  these  hostile  feelings  disappeared,  and  during  the  latter 
part  of  his  life  he  held  him  in  great  respect. 


LIFE     OF     JUDGE     SMITH.  125 

southward.  It  means  with  you  a  person  who  ex- 
presses a  desire  for  an  office,  solicits  votes,  perhaps 
treats  the  electors.  Here  it  only  means  a  person 
talked  of  for  an  office  ;  not  by  himself  or  particular 
connections,  for  in  that  case  he  certainly  would 
not  be  elected.  I  did  not  advertise  the  public  that 
I  would  not  serve.  I  did  not  know  that  I  should 
have  the  offer,  and  I  was,  and  yet  am,  uncertain 
whether  things  may  not  be  so  circumstanced  that  I 
may  wish  to  go  one  session  more.  At  present,  how- 
ever, it  is  the  furthest  from  my  thoughts  and  wishes. 
My  inclination  is,  to  sit  down  in  some  country  town, 
where  the  society  will  be  tolerable,  in  a  small  run  of 
practice  in  the  way  of  my  profession.  I  have,  on 
my  own  account,  but  little  desire  to  be  rich  ;  and  I 
would  take  as  many  precautions  against  ambition  as 
I  would  against  the  yellow  fever,  the  one  being  as 
great  an  enemy  to  happiness  as  the  other  is  to  life. 
The  fever  of  the  mind  I  take  to  be  the  greater  evil  of 
the  two."  It  was  Mr.  Smith's  intention  to  come 
with  his  wife  immediately  to  the  north,  resigning  his 
office,  without  even  taking  his  seat  under  the  new 
commission  ;  but  the  call  of  an  extra  session  changed 
his  plan,  and  on  the  4th  of  April  he  set  out  from 
Maryland  alone. 

To  Mrs.  Smith.  "  New  Castle,  6th  April,  1797. 
One  o'clock,  P.  M.  Here  we  have  been  the  last 
four  hours,  and  here  we  are  like  to  remain  the  next 
four  —  the  wind  and  tide  against  us.  That  is  gen- 
erally the  way  with  misfortunes,  they  seldom  come 
single.  Oh  that  you  were  here  !  that  I  might  have 
somebody  to  vent  my  ill  humors  upon,  somebody  in 
11* 


126  LIFE     OF     JUDGE     SMITH. 

duty  bound  to  bear  them  all.  Such  a  villanous 
house  and  such  company  !  Positively  I  will  set  out 
on  foot,  if  the  winds  do  not  tack  about.  As  to  the 
tide,  it  is  not  to  be  expected  that  it  should  relax  a 
tittle  of  its  punctuality  and  steadiness,  to  oblige  good 
company ;  and,  myself  always  excepted,  a  more 
scurvy  set  were  never  collected,  for  one  packet. 
Noah's  packet,  with  ah1  the  beasts,  birds  and  reptiles 
of  creation  in  it,  was  nothing  to  it.  We  (by  which 
in  this  case  I  mean  they,)  look  for  all  the  world  like  — 
like  —  like  the  Harrises,  Wrights,  and  Findleys  in 
your  neighborhood.  After  having  said  this,  I  will 
not  affront  the  old  gentleman,  whose  name  is  often 
used  on  these  occasions  by  way  of  comparison,  so 
much  as  to  say  they  resemble  him.  If  he  resembles 
them,  his  enemies  have  not  done  him  justice  —  he 
is  worse  than  they  have  painted  him.  One  would 
think,  seeing  such  shoals  of  miscreants  going  to  Phil- 
adelphia, that  all  the  vices,  deformities,  natural  and 
moral  uglinesses  of  creation,  were  summoned  in 
congress  in  Philadelphia,  and  that  these  were  the 
deputies.  Fit  representatives  for  such  constituents  ! 
Thank  heaven,  they  can  steal  nothing  from  me  ! " 

To  the  Hon.  D wight  Foster,  16th  April,  1797. 
"I  need  not  say  that  I  left  Bladensburg,  (leaving 
Mrs.  Smith  there,)  with  regret.  In  a  few  days  we 
should  have  set  out  together,  but  the  president's  pro- 
clamation deranged  all  our  plans.  Not  having  been 
fortunate  enough  to  have  made  my  resignation  before 
congress  were  summoned,  I  considered  that  I  could 
not  with  honor  do  it  till  after  the  session,  and  there- 
fore will  be  obliged  to  attend.  You  see,  my  dear 


LIFE     Or     JUDGE     SMITH.  127 

sir,  my  patriotism  is  not  a  dead  letter,  an  inactive 
principle.  It  will  cost  me  one  thousand  miles  travel, 
and  the  sacrifice  of  happiness  you  can  estimate  with- 
out any  description  or  calculation  of  mine.  I  left 
Philadelphia  on  Monday,  at  noon,  and  arrived  here 
yesterday  evening.  I  spent  a  few  minutes  with  our 
friend  Ames,  at  Dedham.  His  patriotism,  like  the 
French  ships  he  so  fancifully  described,  burns  to  the 
water's  edge.  We  shall  miss  him  next  session.  I 
spent  some  time  with  Mr.  Pickering  and  the  new 
president,  on  my  way  through  Philadelphia.  I  ask 
the  old  gentleman's  pardon  for  mentioning  him  last. 
I  had  from  the  former  a  very  circumstantial  account 
of  the  villanous  treatment  of  our  minister  by  our 
good  friends  and  only  natural  allies,  and  it  is  really 
worse  than  the  newspapers  tell.  The  morning  after 
they  received  the  news  of  their  successes  in  Italy, 
they  gratified  Mr.  Pinckney  with  a  note  in  writing, 
telling  him  they  would  not  receive  him  as  minister, 
and  offering  him  passports  for  Holland.  These  devils 
are  honestly  entitled  to  the  pure  and  fervent  hatred 
of  every  true  American.  I  am  glad  I  have  it  in  my 
power  to  say  that  those,  with  whom  I  have  con- 
versed, appear  to  be  decided  —  those  south  as  well 
as  north." 

The  following  portions  of  a  hastily  written  letter, 
from  the  Hon.  George  Cabot  to  Mr.  Smith,  will  serve 
to  show  something  of  the  feelings  of  the  time,  as 
well  as  of  the  sentiments  of  one  of  the  wisest  and 
ablest  men  in  the  union  :  "  Brookline,  April  17, 
1797.  My  dear  sir :  it  is  easy  to  say  what  ought 
not  to  be  done,  in  certain  conjunctures,  but  diffi- 


128  LIFE    OF    JUDGE    SMITH. 

cult  to  determine  what  ought.  The  truth  is,  that 
we  often  arrive  at  a  dilemma,  in  which  something 
must  be  done,  and  yet  that  something  must  appear 
to  be  wrong  ;  for  the  inconveniences  of  the  course 
taken,  whatever  it  be,  must  be  considerable,  and  will 
be  the  most  known,  and  the  only  ones  felt.  But  no 
considerations  of  this  kind  will  deter  many  men,  whom 
I  am  proud  to  call  friends,  from  adopting  any  measures 
which,  in  theinjudgment,  the  public  good  may  re- 
quire. But  what  are  these  measures  ?  you  ask.  I 
wish  I  could  give  a  satisfactory  answer  to  the  ques- 
tion, but  I  confess  I  cannot.  There  is,  however,  in 
my  mind,  no  difficulty  in  deciding,  that  an  embargo 
would  be  much  more  injurious  to  us,  than  all  the 
depredations  will  be  ;  much  more  injurious  to  us 
than  to  the  French ;  and  indeed  much  more  injurious 
to  the  other  nations  who  have  colonies,  than  to  the 
French.  As  a  permanent  measure,  or  principal 
measure  in  any  system,  I  consider  an  embargo  as 
always  preposterous,  being  necessarily  more  distress- 
ing to  the  nation  that  imposes  it,  than  to  the  nation 
against  which  it  is  intended  to  operate.  But  there 
is  an  infinitude  of  cases  in  which  partial,  special,  or 
temporary  embargoes  may  be  expedient,  and  there- 
fore, at  all  times  of  public  danger,  the  executive 
ought  to  be  authorized  by  law  to  lay  them.  In  the 
most  probable  cases  this  power  cannot  be  exercised 
directly  by  congress  without  defeating  its  own  de- 
signs. I  now  release  you  from  the  embargo,  and 
proceed  to  express  my  hopes  that  the  first  measures 
of  congress  will  be  to  provide  more  revenue.  A  land 
tax,  however  unpalatable  at  first,  will  be  approved 


LIFE    OF    JUDGE    SMITH.  129 

by  the  people  themselves,  after  they  are  brought  to 
contemplate  a  little  more  soberly  the  nature  and  ex- 
tent of  the  public  dangers.  The  few  frigates,  which 
are  in  forwardness,  ought  to  be  equipped  forthwith  ; 
and  the  merchants  should  be  authorized  to  defend 
their  vessels,  as  far  as  it  can  be  done,  without  actual 
war.  If  no  better  idea  occurs  on  this  point,  let  con- 
voys accompany  them.  But  a  minute  examination 
of  the  rights  of  nations  is  requisite,  to  enable  a  man 
to  delineate  this  system  fully.  With  respect  to  a 
new  embassy,  it  would  be  disgraceful,  and  indicate  a 
dread  of  France,  which  is  already  too  great  ;  but 
my  principal  objection  to  it  is,  that  it  may  be  easily 
made  the  means  of  recruiting  the  exhausted  strength 
of  the  French  party  within  our  country,  and  their 
mischiefs  are  more  to  be  dreaded,  than  any  their  mas- 
ters can  perpetrate  without. 

"  Thus,  my  friend,  you  see  with  what  readiness  I 
give  you  my  crudest  opinions.  If  they  are  erroneous, 
it  will  be  a  satisfaction  that  they  have  no  authority, 
and  I  no  responsibility.  But  before  I  close  this  let- 
ter, let  me  entreat  you  to  be  at  Philadelphia  on  the 
day  mentioned  by  the  president.  Probably  you  will 
then  find  a  well-digested  plan  of  the  executive,  which, 
if  not  repugnant  to  your  own  ideas,  you  will  zeal- 
ously support.  If  no  system  is  formed  by  the  exe- 
cutive, or  such  as  shall  be  formed  is  not  supported, 
there  will  be  no  consistency,  and  of  course  no  effi- 
ciency, in  our  measures." 

Within  a  fortnight  of  the  time  that  Mr.  Smith 
left  Bladensburg,  his  wife  was  afflicted  by  the  death 
of  her  mother.  It  is  remarkable  that  neither  of 


130  LIFE    OF   JUDGE    SMITH. 

them,  in  the  letters  written  on  the  occasion,  refers  to 
the  only  true  source  of  consolation.  There  is  no  ex- 
pression of  devout  confidence  and  resignation,  and  no 
intimation  even  of  religious  feeling.  In  Mrs.  Smith's 
early  letters,  generally,  there  is  more  of  Stoic  fortitude 
than  Christian  trust ;  and  her  husband's  Christianity, 
till  he  had  suffered  deeply,  seems  to  have  been  rather 
a  conviction  of  the  intellect,  than  a  sentiment  of  the 
heart.  He  received  it  as  approved  by  reason,  and 
cherished  it  as  essential  to  the  well-being  of  society. 
He  shrunk  from  the  infidel  philosophy  of  France,  as 
tearing  away  the  supports,  and  laying  waste  the 
hopes  and  finer  affections  through  which  alone  the 
great  ends  of  government  may  be  secured. 

On  the  death  of  his  brother  Robert,  who  died  in  De- 
cember, 1795,  he  wrote  as  follows  to  the  widow  :  "  I 
sincerely  sympathize  with  you  in  this  afflictive  dis- 
pensation. As  you  are  called  to  drink  deeply  of 
this  bitter  cup,  I  sincerely  pray  that  your  fortitude, 
resignation,  and  patience,  may  be  equal  to  the  trial. 
It  is  not  necessary  that  I  should  suggest  any  consi- 
derations to  you  on  this  occasion  ;  your  own  good 
sense  will  present  them  to  your  mind  ;  and  that  ha- 
bitual piety,  and  regard  for  the  principles  of  religion, 
which  have  hitherto  marked  your  character,  will  not 
desert  you  in  a  time  of  adversity,  when  you  so  much 
need  the  consolations  which  they,  and  they  only  can 
bestow.  It  cannot  fail  to  give  you  satisfaction  to 
reflect,  that  we  have  every  reason  to  believe  that  our 
friend  has  made  a  happy  exit,  and  gains  far  more  by 
the  exchange  he  has  made  than  you  lose.  From 
my  knowledge  of  him,  and  opinion  of  you,  I  am 


LIFE    OF   JUDGE    SMITH.  131 

persuaded  that  your  recollections  of  past  scenes  will 
be  very  far  from  being  painful.  They  will  be  pleas- 
ant, and  such  as  those  who  have  lived  a  life  of  virtue 
and  goodness,  on  the  death  of  a  most  intimate  friend, 
alone  can  experience." 

After  visiting  New  England,  Mr.  Smith  reached 
Philadelphia  the  17th  of  May,  and  took  an  active 
part  in  the  business  of  the  session.  The  following 
is  from  a  letter  to  his  brother  Samuel,  dated  July 
3,  1797  :  "  By  the  last  accounts  from  Mr.  Pinckney, 
now  in  Amsterdam,  the  aspect  of  things  in  Europe, 
as  it  respects  us,  is  not  changed  for  the  better. 
There  is  every  appearance  of  war  with  the  terrible 
republic.  If  a  general  peace,  however,  should  now 
take  place,  and  of  course  the  war  cease  between 
France  and  England,  we  shall  avoid  an  open  rupture 
with  our  allies.  On  Saturday  a  number  of  gentle- 
men in  this  city,  with  some  members  of  congress, 
gave  a  dinner  to  Monroe,1  in  testimony  of  their 
approbation  of  his  conduct  in  France.  Was 
there  ever  such  a  set  of  miscreants  before  ?  The 
weather  begins  to  be  extremely  hot  and  disagreeable. 
I  long  to  bid  an  eternal  adieu  to  Philadelphia,  and  in 
this  I  am  joined  by  Mrs.  Smith.  My  friend  Ames 
writes  me  every  week,  and  I  find  much  instruction 
and  entertainment  in  his  letters.  I  am  sorry  that  he 
is  declining  in  his  health,  and  fear  he  will  hardly  sur- 
vive the  relapse  he  has  had  this  spring." 

Mrs.  Smith  soon  joined  her  husband  in  Philadel- 

1  It  ought  to  be  added  that  Mr.  Smith,  after  a  full  knowledge  of  the 
circumstances,  changed  his  views  iu  respect  to  Mr.  Monroe's  conduct  in 
France. 


132  LIFE    OF    JUDGE    SMITH. 

phia,  and  remained  with  him  till  the  close  of 'the  ses- 
sion, early  in  July,  when  they  went  together  to  their 
new  home,  in  Exeter,  Newr  Hampshire.  In  making 
their  domestic  arrangements,  as  in  looking  forward  to 
the  true  sources  of  happiness,  their  views  were  sim- 
ple, unambitious,  and  just.  "  Riches,"  he  said  in  a 
letter  to  her  before  their  marriage,  "  which  take  to 
themselves  wings  ;  beauty,  which  fades  as  a  flower ; 
perpetual  spring,  which  exists  nowhere  but  in  the 
imagination  of  the  poets,  make  no  part  of  my  calcu- 
lation. Good  sense,  improved  by  education  and  ex- 
perience ;  a  moderate  portion  of  the  good  things  of 
this  world,  remote  from  both  poverty  and  riches  ; 
hearts  united  in  the  most  tender  friendship,  whose 
highest  bliss  is  to  make  each  other  happy  —  indeed, 
my  love,  we  do  not  deceive  ourselves  when  we  dwell 
on  this  picture  ;  it  is  not  overdrawn."  In  writing  to 
Miss  Ross,  January  27, 1797,  he  had  said :  "  My  cor- 
respondent at  Exeter,  New  Hampshire,  has  just  written 
me  that  he  can  have  a  house,  which  he  thinks  will  an- 
swer our  purpose,  for  forty  dollars  a  year.  I  have  no 
recollection  of  the  house  of  which  he  writes,  though  I 
am  well  acquainted  with  the  town.  In  a  small  vil- 
lage, when  one  must  depend  on  hiring,  you  know 
one  cannot  have  a  choice,  or  at  least  it  must  be  a 
very  limited  one.  From  the  price,  I  should  con- 
clude it  must  be  a  very  ordinary  house  ;  but  per- 
haps it  will  serve  our  purpose  for  a  little  while,  say 
for  a  year  or  two,  till  we  can  accommodate  ourselves 
better,  either  in  buying  or  hiring.  I  have  as  yet 
made  no  arrangements  as  to  furnishing  a  house,  and 
shall  not,  till  I  have  the  pleasure  of  your  commands. 


LIFE    OF    JUDGE    SMITH.  133 

I  persuade  myself  that  you  will  concur  in  opinion 
with  me,  that  in  this,  as  in  everything  else,  we  ought 
to  consult  propriety.  As  our  means  are  not  great, 
and  our  plans  frugal  and  economical,  extravagance 
in  furniture,  even  if  it  cost  us  nothing,  should  be 
avoided,  as  it  would  tend  to  destroy  that  uniformity 
which  I  hope  we  shall  never  lose  sight  of." 

February  11,  1797.  "Nothing  can  be  more  just 
than  the  sentiments  in  your  letter,  '  that  if  we  live 
above  our  income  to  please  others,  we  shall  lose  that 
independence  without  which  there  can  be  no  happi- 
ness.' I  wished  for  wealth,  it  is  true,  but  I  do  not 
repine  because  we  have  it  not.  We  shall,  I  flatter 
myself,  never  want  a  competence  ;  and  if  heaven 
had  given  us  riches,  Eliza,  we  should  not  have 
hoarded  them  up,  we  should  only  have  been  the 
almoner  of  beneficence.  Now  perhaps  we  shall  have 
the  same  pleasure  in  giving  a  little  we  should  have 
had  in  bestowing  much." 

The  following,  written  in  connection  with  the 
same  subject,  is  in  a  more  enthusiastic  strain  :  "  My 
heart  has  blossomed  with  the  sweetest  hope,  and 
I  have  been  happier  than  at  any  former  period  of  my 
life.  In  looking  forward,  though  I  do  not  flatter 
myself  with  a  total  exemption  from  all  the  numerous 
train  of  '  ills  that  flesh  is  heir  to,'  yet  I  feel  that  we 
shall  be  happy.  We  shall  be  but  little  dependent  on 
the  world  for  happiness.  Two  hearts,  united  in  the 
tenderest  bonds  of  love,  which  live  but  for  each 
other,  which  are  blessed  only  when  they  are  bless- 
ing, and  which  receive  pleasure  only  when  they 
bestow  it,  must  be  happy ;  they  will  find  all  their 
heaven  in  themselves." 
12 


134  LIFE    OF    JUDGE     SMITH. 

These  were  views  to  which  he  always  attached 
very  great  importance.  He  consulted  a  wise  econ- 
omy, that  he  might  be  just,  independent,  and  gene- 
rous. A  comprehensive  treatise  on  a  careful  but 
liberal  system  of  economy  in  private  life,  in  public 
affairs,  and  especially  in  the  management  of  literary 
and  charitable  institutions,  might  be  compiled  from 
his  writings,  and  illustrated  by  his  example.  And 
when  we  see  how  many  young  men,  with  fair  pros- 
pects, ruin  themselves  by  extravagant  expenditures, 
and  in  how  many  the  springs  of  kindly  feeling  are 
dried  up  from  a  hard  and  unthrifty  parsimony ; 
when  we  consider  how  little  a  wise  and  generous 
economy  is  practised  by  public  bodies,  whose  con- 
duct is  too  often  marked,  at  one  and  the  same 
time,  by  wanton  profuseness  and  niggardly  mean- 
ness, and  when  we  see  the  sad  waste  of  funds 
which  have  been  treasured  up,  through  years  of  self- 
denial,  that  in  some  public  institution  they  may  be  a 
perpetual  fountain,  going  forth  in  streams  of  know- 
ledge or  of  Christian  kindness,  —  we  cannot  think  that 
he  has  overestimated  the  importance  of  the  subject. 

On  the  10th  of  July,  1797,  Mr.  Smith  was  ap- 
pointed United  States'  attorney  for  the  district  of 
New  Hampshire,  and  on  the  26th  of  the  same  month 
sent  in  to  Gov.  Oilman  the  resignation  of  his  office 
as  member  of  congress.  If  we  may  judge  from  his 
confidential  letters,  it  was  then  his  intention  to  take 
no  further  part  in  political  matters  as  a  public  man  ; 
and  he  did  not  repent  of  his  decision.  His  profes- 
sional business  and  domestic  concerns  gave  him  full 
occupation,  and  of  the  kind  he  desired.  In  a  letter, 


LIFE    OF    JUDGE    SMITH.  135 

9th  March,  1798,  to  his  friend,  the  Hon.  Dwight  Fos- 
ter, who  was  still  in  congress,  he  says :  "  I  have  never 
regretted  my  leaving  the  house.  Of  late,  indeed,  I 
rejoice  with  joy  unspeakable  that  I  am  one  of  the 
people,  and  that  I  am  not  a  partaker  of  the  dishonor 
which  attached  to  the  body  of  which  Lyon  is  a  mem- 
ber, and  who  could  retain  him,  when  a  fair  opportu- 
nity offered  of  getting  rid  of  the  animal.  Indeed, 
my  friend,  it  is  carrying  party  spirit  too  far,  when  we 
suffer  our  character,  as  men,  to  be  disgraced  and  sa- 
crificed on  the  altar  of  party." 

He  took  still  a  decided  interest  in  public  affairs, 
and,  notwithstanding  what  he  here  says  of  party  spirit, 
was  undoubtedly  more  influenced  by  it  at  this  than  at 
any  other  period  of  his  life.  He  was  impressed  with 
the  horror  which  the  French  revolution  was  so  well 
fitted  to  produce,  and  believed  that  if  the  princi- 
ples of  the  opposition  here  should  prevail,  our  coun- 
try would  be  involved  in  the  same  scenes  of  blood- 
shed, anarchy,  and  crime.  His  letters  are  marked 
sometimes  by  hope,  sometimes  by  gloom,  sometimes 
dealing  in  a  playful  raillery,  and  sometimes  pouring 
out  his  sarcasms  in  all  the  pungent  bitterness  of  a 
real  detestation.  "  It  is,"  he  says,  in  1798,  "  my 
firm  belief  that  the  righteous  shall  not  always  mourn, 
nor  the  wicked  always  prosper.  On  every  calcula- 
tion of  human  events  our  prospect  is  gloomy ;  but, 
ere  long,  the  clouds  will  disperse,  and  we  shall  have 
a  bright  day."  Again  :  "I  am  almost  beginning  to 
be  sick  of  republican  government,  and  have  half  a 
mind  to  adopt  O'Brian's  political  creed  before  he 
sailed  from  this  port  (Portsmouth)  for  Algiers.  In 


136  LIFE    OF    JUDGE    SMITH. 

conversation,  he  did  not  hesitate  to  give  the  prefer- 
ence to  the  Algerine  government  over  ours.  He  said 
the  dey  and  his  regency  would  despatch  more  busi- 
ness in  half  a  day  than  our  congress  in  a  month  ;  and 
he  did  not  see  but  that  the  Algerine  affairs  were  as 
well  managed  as  ours.  Really,  my  friend,  there  is 
too  much  truth  in  all  this.  Suppose  the  dey  had 
been  buffeted  by  Satan  as  we  have  been  by  the 
French,  would  he,  think  you,  spend  three  or  four 
years  in  determining  about  the  means  of  protection, 
till  everything  worth  protecting  had  fallen  a  prey  to 
the  rapacity  of  the  enemy  ?  How  long  have  you 
been  building  three  frigates?  They  must,  forsooth, 
be  built  in  three  different  places ;  and  you  must,  to 
show  your  economy,  appropriate  but  half  as  much  as 
was  necessary  for  the  object.  In  short,  you  behave 
so,  that  the  executive  officers  must,  in  their  self- 
defence,  deceive  you.  You  talk  about  checks.  There 
are  checks  enough,  in  all  conscience,  enough  to  sat- 
isfy the  most  zealous  anarchist." 

Exeter,  20th  April,  1798.  "  Portsmouth  had  cir- 
culated a  petition  to  the  selectmen,  to  call  a  town- 
meeting  on  the  subject.  I  am  told  they  are  now  as 
zealous  on  the  right  side,  as  they  have  been  in  times 
past,  on  the  wrong,  and  make  the  most  extravagant 
professions  of  loyalty  to  the  '  powers  that  be.'  But 
this  is  always  the  way  with  the  mob.  Heaven  de- 
fend us  against  mob  government.  'T  is  the  essence 
of  tyranny  ;  the  sublimation  of  villany,  and  the 
scourge  of  honest  men."  .  .  .  .  "  Your  favor,  with 
the  despatches  and  instructions,  came  safe  to  hand 
by  the  last  mail.  I  have,  in  consequence,  re-perused 


LIFE    OF    JUDGE    SMITH.  137 

them.  As  to  our  own  government,  I  find  everything  to 
approve  ;  and,  as  to  that  nest  of  vipers,  everything  to 
condemn.  Surely,  they  are  ripe  for  destruction.  If, 
by  God's  good  providence,  they  have  been  permitted 
to  travel  thus  far  in  the  paths  of  wickedness,  that  He, 
through  them,  may  confound  the  lying  philosophers 
of  our  age,  the  end  must  be  fully  answered.  Those 
who  are  skeptics  now,  would  not  listen  to  a  preacher 
from  the  dead.  Enough  has  been  done  for  the  fools, 
and  as  to  the  knaves,  nothing  will  do  them  any  good, 
but  the  whipping-post  and  the  gallows."  Again,  in 
reference  to  the  same  class  of  men,  he  says  that  he 
would  not  counteract  the  designs  of  Providence, 
which  possibly  might  be  for  wise  purposes,  to  re- 
serve them  for  punishment  in  the  world  to  come,  but 
still  he  should  be  glad  to  have  them  hanged  here  ; 
for,  he  adds,  "  it  is  but  a  small  addition  to  the  pun- 
ishment that  awaits  them,  but  very  useful  in  this 

world,  and  particularly  in  this  country." 

"  We  are  this  moment  engaged,  in  this  town,  in 
raising  a  temple  to  the  Lord  of  Hosts,  not  a  taber- 
nacle for  the  filthy  worship  of  the  goddess  of  reason. 
The  French  pollute  everything  they  meddle  with. 
We  have  great  reason  to  be  thankful  they  have  not 
laid  their  filthy  hands  on  religion.  They  have  brought 
reason,  republicanism,  public  spirit,  &c.  into  ridicule. 
I  hope  God  has,  in  his  good  providence,  determined 
to  honor  these  sacred  things,  by  making  the  abuse  of 
them  as  infamous  as  they  have  made  themselves 
wicked."  "The French  praise  him,  (Gerry,)  I  cannot 
like  him.  Since  they  have  voted  the  Deity  in  again, 
I  own  I  feel  more  doubts  than  usual  about  the  evi- 
dences of  his  religion." 
12* 


138  LIFE    OF    JUDGE    SMITH. 

27th  June,  1798.  "  I  received  your  last  letter  of 
the  19th  by  the  mail  of  Monday,  and  anxiously  wait 
for  the  mail  of  this  day.  The  plot  thickens,  and  we 
are  near  the  catastrophe.  I  am  inclined  to  think  that 
the  public  mind  is  prepared  for  the  last  solemn  ap- 
peal. War  is  inevitable,  and  the  sooner  we  have  it, 
the  better.  I  have  seen  Talleyrand's  letter  in  the 
newspapers.  It  is  couched  in  true  democratic  lan- 
guage, well  calculated  to  '  deceive  the  people  who  sit 
upon  the  wall,'  to  whom  it  is,  in  fact,  addressed.  On 
men  of  sense  it  can  have  no  influence,  except  that  of 
making  them  hate  the  great  nation  still  more.  It  is 
entirely  destitute  of  argument,  and  is  no  answer  to 
the  memorial.  I  am  sorry  the  evidence  multiplies  so 
much  against  Gerry.  He  must  have  acted  impru- 
dently at  least ;  but  Marshall  is  with  you,  and  can 
tell  you  all  about  it.  Give  me  the  result  of  Marshall's 
communications.  I  place  great  confidence  in  him  as 
a  true  patriot  and  a  discerning  man,  and  he  must  be 
able  to  communicate  much  valuable  and  useful  in- 
formation, and  to  advise  what  Israel  ought  to  do  in 
this  perilous  hour.1  The  French  must,  in  all  this 
manosuvering  with  Gerry,  principally  aim  at  gaining 
time.  They  never  can  believe  that  our  government 
will  suffer  the  negotiation  with  him  alone  to  proceed. 

1  Judge  Smith  used  to  give  a  remarkable  instance  of  Judge  Marshall's 
ability  as  a  debater  in  congress.  There  had  arisen  a  discussion  on  some 
intricate  and  perplexing  subject,  in  which  several  prominent  members  of 
the  house,  and,  among  them,  Mr.  Gallatin,  had  taken  part.  After  they 
had  spoken,  Mr.  Marshall  rose,  and  in  a  few  words  laid  the  whole  mat- 
ter open,  with  such  perfect  distinctness,  that  Mr.  Gallatin,  who  had  just 
spoken  on  the  opposite  side,  exclaimed,  "  Mr.  Speaker,  we  are  all  wrong  ; 
the  gentleman  from  Virginia  is  right,"  and  the  whole  house  was  satis- 
fied. It  is  said  that  Judge  Marshall  never,  in  his  life,  took  up  more 
than  three  quarters  of  an  hour  in  a  single  speech. 


LIFE    OF    JUDGE    SMITH.  139 

Indeed,  I  doubt  not,  long  ere  this  he  is  stripped  of 
his  ministerial  robes.  The  French  have  my  free  per- 
mission to  embrace  him  as  kindly  and  fraternally  as 
they  please.  I  wish  our  good  president  could  be  per- 
suaded to  rely  a  little  less  on  himself,  and  a  little 
more  on  his  faithful  ministers,  who,  to  my  certain 
knowledge,  were  opposed  to  this  appointment,  or, 
rather,  were  not  consulted." 

These  extracts,  though  very  great  allowances  will 
of  course  be  made  for  their  humorous  exaggerations, 
sufficiently  show  how  strongly  he  was  carried  away 
by  the  political  feelings  of  the  day.  He  was  con- 
sulted by  the  secretary  of  the  treasury,  Mr.  Wolcott, 
in  respect  to  his  appointments  in  New  Hampshire, 
and  in  the  advice  he  gave,  took  decidedly  the  ground, 
which  he  afterwards  as  decidedly  condemned,  that 
all,  who  did  not  support  the  administration,  were  to 
be  removed  from  office.  "  A  real  jacobin,"  he  says 
in  a  letter  to  Mr.  Wolcott,  "  in  my  opinion  is  never 
made  by  want  of  knowledge  only.  It  is  the  qualities 
of  the  heart  that  constitute  the  essence  of  this  de- 
testable character.  He  hates  the  light,  because  it 
reproves  his  deeds.  It  is  a  solecism  in  politics,  that 
a  government  should  be  administered  by  its  enemies. 
It  has  always  been  my  opinion,  that  those  whom  the 
sovereign  people  entrust  with  the  administration  of 
their  political  concerns,  are  in  duty  bound  to  appoint 
and  continue  in  office,  those  men,  and  those  only, 
who  are  firmly  attached  to  the  principles  of  our  gov- 
ernment and  the  administration."  Mr.  Smith  even 
went  so  far  as  to  maintain  that  a  public  officer  should 
be  removed,  unless  he  took  an  active  part  in  support 


140  LIFE     OF     JUDGE     SMITH. 

of  the  administration.  In  a  letter  to  Joseph  Whip- 
pie,  who  by  his  advice  had  been  removed  from  an 
important  office  in  Portsmouth,  he  says  :  "  To  your 
politeness  as  a  gentleman,  integrity,  zeal  and  intelli- 
gence as  an  officer,  I  could  most  cheerfully  bear  wit- 
ness. But  these  are  not  called  in  question.  You 
are  sensible  that  the  public  opinion  of  your  politics  is 
what  I  have  mentioned When  our  govern- 
ment has  been  assailed  by  a  profligate  foreign  faction, 
to  be  moderate,  is  to  be  cold  in  the  cause,  and  at 
once  a  hypocrite  and  a  traitor.  Ten  thousand  lies 
have  been  daily  circulated  by  lying  men  and  lying 
presses  against  our  public  organs.  Those  who  knew 
them  to  be  so,  and  yet  have  been  silent,  are  sharers 
in  the  guilt.  I  am  told  that  treasonable  speeches 
against  the  government,  were  daily  uttered  in  your 
streets.  Silence  under  such  circumstances,  is  a  sort 
of  misprision  of  treason." 

This  view  of  the  subject  is  not  unlike  that  generally 
taken  by  violent  partisans  in  defence  of  their  illiberal 
and  exclusive  measures,  and  is,  as  Mr.  Smith  in  his 
riper  judgment  maintained,  inconsistent  with  the  true 
principles  of  republican  government.  It  opens  the 
way  to  exaction,  meanness  and  corruption,  converting 
the  offices  of  a  people  into  the  spoils  of  party  warfare, 
holding  them  up,  not  to  be  filled  with  dignity  and 
fidelity,  but  to  be  polluted  and  preyed  upon  by  par- 
tisan rapacity  and  violence.  It  degrades  the  political 
action  of  a  nation,  from  an  honorable  contest  in  be- 
half of  principles  and  measures,  to  a  low  scrambling 
for  official  rank  and  emolument,  and  enlists  under  its 
standard,  only  the  selfish  and  vulgar  passions  of  our 


LIFE     OF     JUDGE     SMITH.  141 

nature.  The  appointments  made  by  Mr.  Smith's 
advice  were,  I  believe,  such  as  are  usually  made  un- 
der such  circumstances  ;  and  in  more  instances  than 
one,  the  places  of  experienced  and  faithful  officers 
were  assigned  to  men  of  insufficient  attainments  and 
irregular  habits.  His  motives  were  undoubtedly  cor- 
rect. The  perilous  condition  of  our  government, 
exposed  to  foreign  factions  and  intrigue,  and  the  con- 
sternation caused  by  the  mighty  events  that  were 
shaking  the  earth,  and  threatening  all  governments 
with  ruin,  might  at  that  time  furnish  an  excuse  for 
stronger  measures  than  could  be  justified  at  any  sub- 
sequent period  of  our  history.  Still,  proscription  for 
opinion's  sake,  is  at  all  times  inconsistent  with  the 
genius  of  a  free  government,  and  must  at  length 
prove  fatal  in  its  consequences. 

But  however  much  Mr.  Smith  may  have  been  in- 
terested in  political  matters,  his  attention  was  almost 
exclusively  given  to  the  studies  and  business  of  his 
profession.  His  practice  was  laborious  and  exten- 
sive,1 and  with  what  he  had  already  laid  up,  promised 
in  time  a  competency  for  himself  and  family.  "  1 
have  less,"  he  somewhere  says,  in  a  letter  to  his  bro- 
ther, "  of  the  hoarding  appetite  than  most  people, 
and  I  thank  God  it  does  not  increase  with  age.  I 
love  economy,  and  hate  avarice  and  idleness.  I 
never  lost  an  hour's  sleep  with  care,  and  never  in- 


1  For  the  year  ending  1st  of  September,  1799,  the  net  income  from  his 
profession  was  $2351  ;  do.  do.  ending  1st  of  September,  1800,  was 
$3018  69;  do.  do.  ending  1st  of  September,  1801,  was  $3077  50.  He 
practised  in  the  counties  of  Rockingham,  Strafford,  Hillsborough  and 
Cheshire. 


142  LIFE     OF     JUDGE     SMITH. 

tend  to.  I  would  choose  to  fill  up  the  day  with 
business  and  action,  because  I  am  happiest  when 
employed  ;  but  care  and  anxiety  I  put  far  away  from 
me."  This  was,  through  life,  a  true  picture  of  him- 
self. He  loved  labor  for  its  own  sake,  and  had 
besides  an  honorable  ambition  to  do  his  best,  in 
whatever  he  undertook.  But  he  indulged  in  no  un- 
necessary forebodings  or  regrets.  Having  done  all 
that  he  could  do,  he  was  content  to  leave  the  rest 
with  Him  who  governs  the  world,  and  this  habitual 
cheerfulness,  while  it  left  his  faculties  always  bright, 
contributed  in  no  small  degree,  to  his  ability  to  labor, 
his  health,  enjoyment  and  success.  In  the  fall  of 
1800,  Mr.  Smith  was  appointed  judge  of  probate  for 
the  county  of  Rockingham,  and  continued  in  that 
office  for  about  two  years.  He  labored  hard  to  re- 
duce to  order  this  branch  of  law,  and  prepared  a  full 
and  elaborate  treatise  on  the  subject.  This  work, 
which,  in  the  opinion  of  one  eminently  qualified  to 
judge,  was  much  superior  to  any  treatise  on  probate 
law  then  existing,  is  still  in  manuscript.  But  more 
than  forty  years  have  passed  by,  and  no  legal  essays, 
except  those,  which  with  remarkable  power  illustrate 
the  great  and  fundamental  principles  of  law,  can, 
after  lying  in  silence  nearly  half  a  century,  speak 
with  any  decisive  authority  to  a  generation  who  have 
sprung  up  since  they  were  prepared,  and  who,  edu- 
cated in  other  elementary  works,  are  bound  by  other 
systems  of  legislation. 


CHAPTER  VI. 

1801  —  1809. 

JUDGE  OF  THE  U.  S.  CIRCUIT  COURT  CHIEF  JUS- 
TICE OF  NEW  HAMPSHIRE  INFLUENCE  AND  CHA- 
RACTER AS  A  JUDGE  HIS  CHARGES  TO  THE 

GRAND    JURY. 

ON  the  20th  of  February,  1801,  Mr.  Smith  was 
appointed  a  judge  in  the  United  States  circuit  court, 
which  had  been  established  a  short  time  previous. 
He  accepted  the  appointment,  in  the  following  letter 
to  John  Marshall,  then  secretary  of  state,  who  had 
interested  himself  in  securing  for  him  the  office :  — 
"Exeter,  N.  H.,  March  11,  1801.  Sir:  I  had  the 
honor  to  receive  yesterday  your  letter  of  the  21st 
ult.,  inclosing  a  commission  for  the  office  of  circuit 
judge  of  the  United  States.  You  will  be  pleased 
to  inform  the  president,  that  I  accept  the  appoint- 
ment, and  that  it  shall  always  be  my  earnest  endea- 
vor to  merit,  as  far  as  I  am  able,  this  distinguished 
mark  of  confidence.  Allow  me  to  add,  that  I  am 


144  LIFE    OF    JUDGE    SMITH. 

not  insensible,  on  this  occasion,  to  the  kindness  and 
partiality  of  my  friends.  My  obligations  to  you  are 
particularly  grateful,  as  affording  to  me  evidence  of 
the  regard  and  esteem  it  has  always  been  my  wish 
to  deserve  and  my  pride  to  cultivate.  I  am  with 
great  respect,  sir,  your  obedient  servant,  J.  S." 

Mr.  Smith  had  now  reached  the  office  to  which, 
above  all  others,  he  aspired.  He  was  particularly  for- 
tunate in  his  associates  upon  the  bench,  and  always 
spoke  of  John  Lowell,  the  chief  justice,  as  one  of 
the  purest  and  wisest  of  men,  and  of  Judge  Bourne, 
as  a  delightful  companion,  full  of  intelligence  and 
life.  There  was  just  the  sort  of  difference  in  their 
characters,  which  might  serve  to  make  their  inter- 
course most  delightful ;  the  two  younger  judges  hav- 
ing that  boyish  playfulness  in  conversation,  which 
contrasted  so  finely  with  the  more  sedate  wisdom 
of  the  chief  justice,  whose  children  still  remember 
to  have  seen  their  mother  laugh,  till  the  tears  ran 
down  her  cheeks,  at  the  sallies  of  Judge  Smith's  wit. 
Judge  Lowell's  health  had  already  begun  to  fail,  al- 
lowing him  no  opportunity  to  do  justice  to  his  pow- 
ers, and  short  as  was  the  duration  of  the  office  which 
he  held,  it  outlasted  his  life.  His  death,  at  the  time 
of  their  greatest  perplexity,  was  a  sore  calamity  to  his 
associates. 

For  three  months  before  engaging  in  the  active 
duties  of  his  office,  Judge  Smith  employed  himself 
not  less  than  fourteen  hours  a  day  on  his  professional 
studies.  He  seldom  went  out  of  the  house,  his  daily 
walk  extending  only  from  his  dining-room  to  his  li- 
brary. Though  always  a  hard  student,  he  now  re- 


LIFE    OF    JUDGE    SMITH.  145 

garded  his  former  attainments  as  of  no  account,  and 
afterwards  looked  back  on  those  three  months  as  the 
beginning  of  his  legal  education.  It  might  not  be 
safe  for  others  to  imitate  his  example  in  this  respect, 
for  though  not  of  a  strong  constitution,  he  had,  to  a 
very  uncommon  extent,  the  power  of  enduring  long- 
continued  and  severe  intellectual  application.  Like 
the  late  Dr.  Bowditch,  he  could  bear  to  be  inter- 
rupted in  the  midst  of  his  professional  investigations. 
After  attending  to  what  had  called  him  off,  he  would 
return  immediately,  and  without  embarrassment,  to 
his  studies,  and  go  on  with  them  as  if  nothing  had 
occurred.  However  deeply  he  might  be  engaged, 
and  however  suddenly  drawn  off,  he  would  seemingly 
without  effort,  and  with  the  utmost  good  humor,  join, 
whether  in  a  frolic  with  a  child,  in  sportive  conversa- 
tion with  a  young  lady,  or  in  answering  intricate 
questions  of  law  ;  and  the  moment  these  were 
finished,  return  to  his  previous  investigations,  when 
no  ripple  remained  to  show  that  the  clear  deep  cur- 
rent of  his  thought  had  been  disturbed.  Those  who 
studied  law  in  his  office,  speak  of  this  as  a  remark- 
able feature  in  his  character.  At  first  they  would 
hesitate  about  breaking  in  upon  him,  when  they 
saw  him  absorbed  in  study.  But  they  soon  found 
that  they  need  have  no  apprehensions,  that,  however 
much  he  might  be  engaged,  he  would  cheerfully  an- 
swer their  questions,  taking  whatever  time  might  be 
needed  for  the  purpose,  and  then  return  to  his  stu- 
dies, without  appearing  to  have  been  drawn  aside.  It 
is  easy  to  see  how  valuable  a  trait  this  is  in  the  charac- 
ter of  a  lawyer,  and  especially  of  a  judge,  enabling 
13 


146  LIFE    OF   JUDGE    SMITH. 

him  to  carry  on  a  profound  and  laborious  process  of 
investigation,  without  permitting  the  thousand  little 
points  that  are  constantly  coming  up,  and  which 
sometimes  materially  affect  the  result,  to  escape,  di- 
vert, or  annoy  him. 

Judge  Smith  entered  upon  his  new  office  with  the 
expectation  that  it  was  to  continue  for  life.  The 
studies  which  it  required  of  him  at  home,  and  the 
business  of  the  circuit  abroad,  were  alike  suited  to 
his  taste,  and  furnished  the  sort  of  variety  which  is 
so  essential  to  a  full  and  liberal  culture  of  the  mind. 
He  was  brought  into  the  society  that  he  most  en- 
joyed, and  was  filling,  in  the  eyes  of  the  community, 
a  useful,  responsible,  and  honorable  office,  and,  in 
the  enlightened  and  conscientious  discharge  of  its 
duties,  he  looked  forward  to  the  gratification  of  his 
highest  ambition.  By  devoting  to  it  his  time  and 
strength,  by  diligence  in  study  and  fidelity  in  action, 
he  hoped  to  be  constantly  enlarging  his  stores  of 
knowledge,  to  fulfil  an  important  trust  as  a  member 
of  society,  and  to  gain  the  approbation  *of  the  wise, 
and  the  confidence  of  the  good.  He  used  to  say,  it 
was  the  only  office  that  he  had  ever  greatly  desired,  or 
the  loss  of  which  he  had  greatly  regretted.  In  age 
he  looked  back  on  no  part  of  his  public  life  with  so 
much  pleasure,  though  it  was  a  pleasure  accompanied 
always  by  the  feeling,  that  in  losing  the  office  he  had 
been  thrown  out  of  the  place  best  fitted  for  his  im- 
provement, distinction,  and  usefulness. 

He  attended  on  all  the  circuits;  but  I  know  of 
nothing  unusual  connected  with  them.  In  conse- 
quence of  the  mental  derangement  of  the  district 


LIFE    OF    JUDGE    SMITH.  147 

judge  in  New  Hampshire,  he  was  appointed  to  hold 
the  district  court  in  Portsmouth,  when  a  circumstance 
somewhat  embarrassing  occurred.  The  district  judge, 
unconscious  of  his  infirmity,  took  his  seat  upon  the 
bench,  attended  to  the  business  as  it  went  on,  and, 
after  the  counsel  had  got  through,  rose  to  charge  the 
jury.  He  was,  however,  soon  perplexed,  and  being 
unable  to  proceed  with  his  charge,  uttered  a  short 
prayer  and  retired  ;  when  the  circuit  judge  went  on, 
as  if  nothing  had  taken  place. 

Early  in  the  next  session  of  congress,  (1801-2,) 
there  was  manifested  a  strong  disposition  to  repeal 
the  judiciary  law  of  the  previous  session.  A  bill  for 
that  purpose  originated  in  the  senate,  and  after  a 
long  and  spirited  debate,1  finally  passed  the  house  by 


1  The  following  are  extracts  from  two  letters  from  a  member  of  con- 
gress, Samuel  Tenney  to  Judge  Smith,  dated  January  14,  and  February 
19,  1802.  "  The  question  for  repealing  this  law  has  been  several  days 
debated  in  the  senate  ;  and  several  members  on  both  sides  of  the  house 
have  highly  distinguished  themselves,  particularly  Morris  and  Tracy, 
for  sound  sense  and  solid  argument ;  Wright,  Cooke,  and  Stone,  for  non- 
sense and  absurdity. 

"  When  Tracy,  after  his  speech,  retired  to  the  fire,  half  dead  with 
his  exertions,  Calhoun  coming  up  to  him,  gave  him  his  hand,  and 

said,  '  You  are  a  stranger  to  me,  sir,  but  by  you  have  made 

me  your  friend.  I  had  been  told  a  thousand  lies  about  that  part  of  the 
judiciary  established  last  winter,  particularly  that  the  bill  was  brought 
in  at  the  heel  of  the  session,  and  hurried  through  without  consideration 
or  debate,  in  consequence  of  which  I  was  disposed  to  repeal  it.  You 
have  convinced  me  that  the  repeal  would  be  both  inexpedient  and  un- 
constitutional. I  shall  be  with  you  on  the  question.'  '  Mr.  Calboun,' 
said  Tracy,  taking  him  by  the  hand,  '  may  we  depend  upon  you  1  '  He 
replied,  with  great  earnestness,  '  By you  may.' 

"  He  was  followed  by  Mr.  Hemphill,  of  Pennsylvania,  who  for  more 
than  an  hour  held  both  sides  of  the  house,  the  senate,  the  lobby,  and 
the  gallery,  in  a  mixture  of  surprise  and  admiration.  He  is  a  country 
attorney,  about  twenty-eight  years  of  age,  equally  remarkable  for  the 


148  LIFE    OF    JUDGE    SMITH. 

a  large  majority  early  in  March.  This  was  purely  a 
party  measure,  adopted  solely  for  the  purpose  of  dis- 
placing the  judges  who  had  been  appointed  by  Mr. 
Adams,  and,  having  that  for  its  object,  was  palpably 
a  violation  of  the  spirit,  if  not  of  the  letter,  of  that 
part  of  the  constitution  which  would  guard  the  inde- 
pendence of  the  judiciary.  But  whether  constitu- 
tional or  not,  the  voice  of  the  dominant  party  was  for 
it,  and  nothing  further  could  be  done. 

I  find  the  following  letter  from  Judge  Tilghman  : 
Philadelphia,  May  22,  1802.  "  Sir  :  I  have  the  honor 
of  addressing  you,  on  behalf  of  the  circuit  judges 
for  the  third  circuit  of  the  United  States.  The  act 
of  the  last  session  of  congress,  repealing  the  law 
under  which  we  hold  our  offices,  has  filled  our  minds 
with  the  most  serious  reflections.  Believing,  as  we 
do,  that  the  repealing  law  is  a  violation  of  the  con- 
stitution, we  feel  ourselves  impelled  by  sacred  obli- 
gations, to  take  legal  measures  for  disputing  its 
validity.  How  to  bring  this  important  subject  to  a 
constitutional  decision,  with  the  least  possible  inter- 
ruption of  the  public  convenience  and  tranquillity, 


simplicity  of  his  manners,  the  correctness  of  his  morals,  and  the  mo- 
desty of  his  deportment.  It  was  the  general  idea,  that  the  subject  had 
been  so  completely  exhausted  in  the  senate,  that  nothing  was  left  for  us 
but  a  different  dress  and  new  arrangement  of  the  arguments  there  used. 
But  the  ground  taken  by  Mr.  Hemphill  was  so  new,  his  reasonings 
from  various  parts  of  the  constitution  so  clear,  and  his  deductions  so 
incontrovertible,  that  it  was  said  several  of  the  majority  of  the  senate 
were  staggered.  At  the  close  of  his  speech,  Giles  moved  that  the  com- 
mittee should  rise  and  report  progress,  though  it  was  nearly  an  hour 
earlier  than  the  usual  time  of  adjourning,  observing,  that  the  arguments 
of  the  gentleman  were  very  weighty,  and  that  he  was  not  then  prepared 
to  answer  them." 


LIFE    OF    JUDGE    SMITH.  149 

and  how,  in  the  meantime,  to  conduct  ourselves  with 
the  greatest  propriety,  are  questions  which  require 
full  and  mature  deliberation.  It  appears  to  us,  that 
they  cannot  well  be  answered,  without  a  personal 
communication  of  sentiments  between  the  judges  of 
the  different  circuits.  A  free  and  candid  discussion 
will  lead  to  that  uniformity  of  conduct,  which  is,  in 
many  respects,  so  desirable.  We  feel  assured  that 
we  are  all  equally  interested  in  the  public  welfare, 
equally  influenced  by  pure  and  honorable  motives. 
Under  these  impressions  we  have  thought  it  advisa- 
ble to  request  a  general  meeting  of  the  circuit  judges, 
in  the  city  of  Philadelphia,  on  Saturday,  the  17th 
July  next.  An  earlier  day  would  not  afford  time  for 
proper  notice,  and  a  later  might  be  attended  with 
inconvenience.  We  hope  for  the  benefit  of  your 
presence  and  assistance ;  but  should  you  be  unable 
to  attend,  which  we  should  indeed  consider  pecu- 
liarly unfortunate,  you  will  much  oblige  us  by  a 
written  and  full  communication  of  your  sentiments." 
To  this,  Judge  Smith  replied  :  "  Exeter,  7th  June, 
1802.  I  feel,  as  you  do,  impressed  with  the  convic- 
tion that  some  steps  ought  to  be  taken  to  obtain  a 
constitutional  decision  on  the  late  act  of  congress,  re- 
pealing the  judiciary  law  of  1801.  It  is  certaiply  of 
the  highest  consequence,  in  an  affair  of  this  kind, 
delicate  as  respects  ourselves,  and  important  as  re- 
spects the  public  welfare,  that  the  most  unexception- 
able course  of  action  should  be  adopted  and  pursued. 
I  see  no  objection  to  the  meeting  you  propose  in 
July.  Perhaps  it  is  the  only  way  of  accomplishing 
what  we  all,  I  presume,  desire.  I  do  not  know  that 
13* 


150  LIFE    OF    JUDGE    SMITH. 

it  will  be  in  my  power  to  attend.  If  it  should  not,  I 
will  with  pleasure  communicate  anything  that  may 
occur  to  me  on  the  subject  of  the  meeting." 

Only  four  judges  attended  the  proposed  meeting. 
Another  meeting  was  appointed  to  be  holden  in 
Philadelphia,  on  the  20th  of  November,  the  result  of 
which  was,  that  a  memorial  to  congress  was  drawn 
up  and  presented,  but  without  any  effect.  The  loss 
of  this  office  was  the  severest  disappointment  that 
Judge  Smith  experienced  in  his  public  life.  But 
before  its  term  expired,  another  important  judicial 
station  was  offered  to  him.  The  office  of  chief  justice 
of  the  superior  court  of  judicature  in  New  Hamp- 
shire had  been  vacated  by  the  resignation  of  Simeon 
Olcott,  who  had  been  elected  to  the  senate  of  the 
United  States.  Timothy  Farrar  was  appointed  by 
Gov.  Oilman,  and  received  the  commission  of  chief 
justice  in  February,  1802.  He  was  very  desirous 
that  the  administration  of  justice  should  be  estab- 
lished on  purely  legal  principles,  and,  with  a  modesty 
not  less  remarkable  than  his  good  sense,  kept  the 
office  open  till  one,  whom  he  considered  greatly  his 
own  superior  in  the  law,  should  be  at  liberty  to  take 
it.  This  he  did  by  presiding  in  the  court  as  senior 
justice,  without  either  accepting  or  declining  the 
commission  which  had  been  offered  to  him,  until  it 
was  ascertained  that  Judge  Smith's  office  in  the 
fedeial  court  was  to  be  taken  from  him.  He  then 
formally  declined  the  appointment,  and  the  commis- 
sion was  made  out  on  the  17th  of  May  for  Jeremiah 
Smith.  But  the  smallness  of  the  salary  (eight  hun- 
dred and  fifty  dollars  a  year)  was  such  that  Mr.  Smith 


LIFE    OF    JUDGE    SMITH.  151 

could  not  think  of  accepting  it.  In  his  reply,  June 
5,  1802,  to  Gov.  Oilman's  notice  of  the  appointment, 
after  expressing  his  gratification  for  this  new  mark  of 
confidence,  and  his  willingness  to  continue  in  that 
course  of  life,  he  adds  :  "  But  with  the  compensation 
now  annexed  to  the  office,  it  is  not  in  my  power  to 
accept  it.  It  has  not  been  my  lot  to  acquire  any 
considerable  property  hitherto.  I  have  a  family,  for 
whom  I  am  bound  to  provide.  I  cannot  think  it  my 
duty,  at  my  present  time  of  life,  to  occupy  a  situation 
in  which  I  must  eventually  consume  the  small  earn- 
ings of  a  few  years  of  industry  and  economy,  and 
very  soon  find  myself,  and  those  I  love,  depending 
for  subsistence  on  public  or  private  charity.  This 
is  a  subject  on  which  I  could  say  a  great  deal,  but 
the  delicacy  of  my  peculiar  situation  prevents.  I 
would  not  have  said  so  much,  and  especially  about 
my  own  affairs,  did  I  not  feel  anxious  that  you,  and 
my  fellow-citizens  in  general,  should  be  possessed  of 
the  true  motives  which  actuate  me  on  this  occasion. 
Though  I  cannot  but  feel  much  regret,  that  I  am  not 
better  qualified,  yet  if  it  seems  meet  to  the  legislature 
to  make  such  provision  for  the  office  as  will  enable 
me  to  accept,  I  will  do  so  with  a  firm  determination 
to  devote  all  my  time  and  powers,  such  as  they  are, 
to  the  discharge  of  its  important  duties.  If  this 
course  should  not  meet  the  general  approbation  of 
those  to  whom  the  people  have  intrusted  the  power, 
I  shall  most  cheerfully  acquiesce,  so  far  as  I  am  per- 
sonally concerned,  and  shall  return  again  to  private 
life  with  as  much  pleasure  as  ever  I  quitted  it." 
In  the  mean  time  it  had  been  suggested  to  him  by 


152  LIFE    OF    JUDGE    SMITH. 

Mr.  Dexter,  of  Massachusetts,  through  the  Hon. 
Timothy  Bigelow,1  that  he  ought  formally  to  resign 
his  office  of  circuit  judge,  before  accepting  that  of 
chief  justice  of  New  Hampshire.  To  this  he  replied, 
June  7,  1802.  "  My  dear  sir:  I  had  the  pleasure  of 
your  letter  of  the  first  instant  a  few  days  ago.  I  will 
not  accept  the  office  of  chief  justice,  unless  addition 
is  made  to  the  compensation  ;  of  which  there  is  no 
greater  probability  than  that  a  thousand  democrats 
should  in  one  day  become  honest  men,  or  that  our 
brother  Prentice  should  set  up  a  singing  school,  and 
teach  vocal  and  instrumental  music.  I  cannot,  how- 
ever, subscribe  to  the  sentiments  contained  in  your 
letter,  on  the  necessity  and  propriety  of  resigning 
the  office  lately  taken  from  me,  in  case  I  should  find 
an  inclination  to  accept  that  of  chief  justice.  I  cer- 
tainly believe  that  I  shall  continue  a  circuit  judge  de 
jure,  and  it  is  equally  certain  that  I  shall  cease  to  be 
a  judge  de  facto.  The  office  of  supreme  judge  in 
this  state,  by  our  state  constitution,  is  incompatible 
with  the  holding  of  a  living  office  under  the  United 
States.  But  as  I  am  to  receive  no  salary,  and  am 
in  no  immediate  expectation  of  a  pension  from  the 
United  States,  I  do  not  conceive  that  it  is  incompat- 
ible with  my  titular  office  of  circuit  judge,  according 
to  the  spirit  of  our  constitution.  So  much  in  answer 
to  an  objection  from  a  New  Hampshire  citizen.  In 


1  Mr.  Bigelow,  for  many  years  speaker  of  the  house  of  representatives 
ii  Massachusetts.  He  used  to  say  that  Judge  Smith,  with  whom  he 
was  on  intimate  terms,  once  exclaimed  to  him  :  "  Bigelow,  you  are  a 
clever  fellow :  you  are  a  very  clever  fellow :  I  have  always  said  so,  and 
have  made  a  great  many  enemies  by  it  too." 


LIFE    OF    JUDGE    SMITH.  153 

the  constitution  of  the  United  States,  I  find  nothing 
which  renders  the  two  offices  incompatible.  If  I 
viewed  it  in  this  light,  I  should  decline,  at  all  events. 
I  conceive  that  there  is  still  a  faint  glimmering  ray  of 
hope,  that  the  circuit  judges  will  be  restored.  I  am 
well  assured  (in  confidence)  that  measures  will  be 
taken  to  try  the  validity  of  the  repealing  act.  I  do 
not  conceive  that  accepting  an  office  in  the  state  in- 
compatible with  that  of  circuit  judge,  according  to 
the  state  constitution,  would  be  evidence  that  I  con- 
sider the  office  as  extinct,  in  consequence  of  the  re- 
pealing law.  It  would  only  be  evidence  that  I  con- 
sider its  duties  and  emoluments  as  suspended,  and 
chose  to  make  myself  useful  during  the  suspension, 
or,  to  come  still  nearer  to  the  truth  of  the  case,  that 
I  choose  to  live,  till  it  should  please  the  sovereign 
people  to  '  overturn,  till  they  whose  right  it  is  should 
judge.'  The  evidence,  as  it  respects  the  effect  of  the 
act  of  congress  on  the  judiciary  system,  would  be  just 
as  great,  I  think  the  same,  if  I  should  employ  myself 
in  practice,  as  I  must ;  for  T  have  considered  practice 
at  the  bar  equally  improper  in  a  circuit  judge,  as  ad- 
ministering justice  on  the  bench.  Neither  is  incom- 
patible, but  both  improper,  if  the  emoluments  of  the 
office  had  not  been  taken  from  it.  Suppose  some  of 
your  Groton  patriots  should  take  it  into  their  wise  and 
patriotic  heads,  that  it  would  be  doing  something  for 
the  good  of  the  whole,  to  turn  you  out  of  your  dwell- 
ing, in  some  violent  storm,  and,  by  force,  hold  you 
out ;  would  you  think  it  necessary,  in  order  to  show 
that  you  thought  the  whole  proceeding  illegal,  to  re- 
main in  the  highway  as  near  as  you  could,  and  suffer 


154  LIFE    OF    JUDGE    SMITH. 

a  drenching  as  well  as  expulsion  ?  Would  it  weaken 
your  title,  in  the  opinion  of  others,  or  betray  any 
want  of  confidence  in  it  on  your  part,  if  you  were  to 
take  the  earliest  opportunity  of  obtaining  the  best 
shelter  you  could,  and  leave  it  to  the  proper  tribunal 
to  settle  the  question  of  right  ?  I  have  heard  of  cler- 
gymen, who,  when  denied  entrance  into  their  pulpits, 
have  thought  it  necessary,  in  order  to  keep  up  their 
claim  to  salary,  to  wear  a  band  and  black  gown  on 
Sundays;  and  some  have  thought  it  necessary  to  hold 
forth,  whether  they  had  any  hearers  or  not,  as  near  the 
meeting-house  door  as  possible.  I  do  not  pretend  to 
have  thought  much,  and,  as  you  will  readily  perceive, 
I  have  not  thought  seriously  on  this  subject.  If  ac- 
cepting an  office  in  the  state  would  be  a  vacating  the 
office  under  the  United  States,  then  I  conceive  your 
opinion  well  founded ;  otherwise,  I  do  not  feel  the 
force  of  the  observations  contained  in  your  obliging 
letter.  And  certainly,  as  they  come  from  two  per- 
sons I  have  always  been  in  the  habit  of  esteeming,  I 
feel  disposed  fully  to  appreciate  them." 

An  addition  was  made  to  the  salary  of  the  chief 
justice.  By  an  act  of  the  legislature,  (18th  of  June, 
1802,)  it  was  raised  from  eight  hundred  and  fifty  to 
a  thousand  dollars.  The  following  letter  to  Governor 
Oilman,  is  dated  13th  August,  1802.  "  Sir :  Con- 
trary to  my  first  determination,  I  have  at  length  con- 
cluded to  accept  of  the  office  of  chief  justice,  and  to 
resign  that  of  judge  of  probate.  The  principal  ob- 
jection I  have  had  to  this  acceptance,  respects  the 
salary  annexed  to  the  office,  which  I  have  thought, 
and  still  think  inadequate  to  the  duties.  It  is  with 


LIFE     OF     JUDGE     SMITH.  155 

great  reluctance  I  have  formed  this  determination, 
and  I  have  a  strong  presentiment  that  I  shall  repent 
it.  I  mention  this  that  I  may  avoid  the  imputation 
of  fickleness,  in  case  on  trial  I  should  find  it-  to  be 
my  duty  to  resign  it." 

Upon  trial  he  was,  as  he  had  anticipated,  entirely 
convinced  of  the  inadequacy  of  the  compensation, 
and  in  June,  1804,  addressed  to  the  two  branches  of 
the  legislature  a  letter,  containing  suggestions  which 
deserve  to  be  seriously  considered  by  those  who  are 
engaged  in  legislating  on  this  delicate  and  important 
subject.  If,  through  the  smallness  of  the  salary,  com- 
petent men  are  excluded  from  the  office,  and  the 
bench  is  made  a  sort  of  public  asylum  for  those  who 
have  not  talent  or  industry  enough  to  support  them- 
selves at  the  bar,  for  every  dollar  that  is  saved,  hun- 
dreds will  be  lost  to  the  community.  The  delays 
occasioned  by  unskilful  management,  the  needless 
continuance  of  actions,  the  multiplication  of  law-suits 
growing  out  of  the  uncertainty  of  the  law  in  the  hands 
of  those  who  do  not  understand  its  principles,  and 
the  consequently  increased  expense  of  jurymen  and 
witnesses,  must  add  indefinitely  to  the  cost.  And 
the  injury  is  one  which  falls  with  peculiar  severity 
upon  the  poor,  who  must  look  for  protection  to  an 
able  and  impartial  court ;  since  with  a  feeble  court  it 
will  be  in  the  power  of  the  rich  to  secure  the  most 
ingenious  advocates,  and  to  worry  out  a  poor  adver- 
sary by  the  obstacles,  which  a  skilful  lawyer  may 
throw  in  the  way  of  an  unskilful  judge,  to  obstruct 
or  turn  aside  the  course  of  justice.  But  where  the 
judges  are  from  the  ablest  members  of  the  profession, 


156  LIFE     OF     JUDGE     SMITH. 

the  poor  man,  who  can  afford  to  employ  none  but 
weak  or  inexperienced  counsel,  and  who  seems  ready 
to  be  crushed  by  the  unequal  weight  of  a  powerful 
adversary  at  the  bar,  will  find  upon  the  bench  an 
advocate  who  will  restore  the  balance,  and  secure  to 
him  his  rights.  It  is  strange,  therefore,  that  it  should 
so  often  be  considered  a  popular  measure  to  reduce 
the  compensation  of  judges. 

"  To  the  president  of  the  senate.  Exeter,  6th  June, 
1804.  Sir:  When  I  accepted  the  office  of  chief 
justice,  I  was  not  so  vain  as  to  imagine  that  I  pos- 
sessed suitable  qualifications  for  an  office  of  so  much 
importance.  At  the  same  time  I  viewed  the  com- 
pensation annexed  to  it  as  inadequate,  if  its  duties 
were  performed  in  any  manner  as  they  ought  to  be. 
But  having  for  some  time  before  left  the  bar,  I  was 
induced  to  make  the  experiment.  Sufficient  time 
has  now  elapsed  for  that  purpose.  I  have  endeavored 
faithfully  to  perform  my  duty  ;  I  have  spared  no  la- 
bor or  pains,  but  have  wholly  devoted  myself  to  the 
business  of  the  office,  and  yet  I  am  sensible  that  the 
performance  has  been  extremely  imperfect.  It  has 
been  far,  very  far  below  my  own  wishes.  But  what- 
ever opinion  may  be  formed  on  this  subject,  I  am 
constrained  to  observe,  that  I  have  found  the  com- 
pensation so  inadequate,  that  I  cannot  longer  retain 
the  office.  It  has  been  my  fortune  to  acquire  but 
little  property.  For  the  best  part  of  the  last  sixteen 
years,  I  have  been  a  very  laborious  and  assiduous, 
though  very  unimportant  servant  of  the  public  ;  and, 
whatever  other  advantages  may  be  supposed  to  have 
flowed  from  these  employments,  they  have  not  proved 


LIFE     OF     JUDGE     SMITH.  157 

profitable  to  me  in  a  pecuniary  point  of  view.  At 
no  period  of  my  life  have  I  been  anxious  to  acquire 
property.  A  competent  support  is  all  I  have  desired, 
or  yet  desire,  and  for  that  I  must  still  depend  upon 
my  daily  labor.  Having  been  from  the  bar  for  up- 
wards of  three  years,  I  prefer  continuing  in  my  pre- 
sent office,  to  returning  again  to  the  practice.  But 
if  the  compensation  be  not  in  some  way  made  equal 
to  the  actual  expense  of  living,  there  is  no  alternative 
left.  I  must  yield  to  the  dictates  of  necessity.  The 
office  with  which  I  have  been  honored,  I  believe  to 
be  of  sufficient  importance  to  me-'it  a  decent  main- 
tenance. I  know  it  has  been  imagined  by  some  that 
its  duties  require  but  a  portion  of  the  time  of  the 
person  holding  it,  and  that  a  considerable  part  may 
be  devoted  to  other  pursuits.  I  conceive  this  to  be 
a  mistaken  opinion.  A  judge  must  annually  travel, 
on  the  circuits  as  they  are  now  established,  upwards 
of  seven  hundred  jniles,  and  be  absent  from  his  fam- 
ily near  half  the  /ear.  In  every  county,  and  at  every 
term,  questions"  arise  which  are  both  difficult  and 
important.  To  delay  the  jury,  the  witnesses,  and 
all  those  who  have  business  at  the  court,  till  these 
difficult  questions  are  settled,  would  be  attended  with 
great  expense  and  inconvenience.  It  must  be  obvi- 
ous, on  a  moment's  reflection,  that  this  kind  of  busi- 
pess  can  be  better  done  in  the  vacation,  when  the 
judges  are  relieved  from  the  hurry  and  bustle  of 
court,  and  from  the  fatigue  attending  the  hearing  a 
multiplicity  of  causes,  and  when  they  can  have  access 
to  such  books  and  papers  as  may  be  profitably  con- 
sulted. In  this  way,  and  I  will  venture  to  say  in 
14 


158  LIFE     OF     JUDGE     SMITH. 

this  way  only,  can  new  and  difficult  questions  which 
daily  arise  in  the  courts,  be  settled  in  a  manner  hon- 
orable to  the  court,  or  satisfactory  to  the  parties.  In 
this  way  decisions  may  be  made,  which  will  serve  as 
rules  for  deciding  similar  questions  as  they  arise,  in 
future  causes,  and  the  law  will  become,  what  it  ought 
to  be  in  every  free  state,  a  known  rule  of  conduct. 
So  strongly  am  I  impressed  with  the  utility  of  this 
course  of  proceeding,  that  I  will  venture  to  say,  that 
let  a  judge  set  out  with  ever  so  large  a  stock  of  know- 
ledge, and  let  his  natural  abilities  be  ever  so  good, 
still  he  will  meet  vith  many  hard  questions,  too  diffi- 
cult to  be  solved  on  the  circuit ;  questions  which  will 
require  both  time  and  consideration,  and  afford  suffi- 
cient employment  during  the  vacation.  He  will  find 
it  useful  to  revise  all  opinioas  formed  in  court,  as  well 
as  to  investigate  questions  reserved.  He  will  find  it 
necessary  to  store  his  mind  w'vth  knowledge  of  the 
usages,  customs  and  history  of  his  own  country,  with 
the  opinions  and  decisions  of  thos<i  who  have  gone 
before  him,  and  to  avail  himself  of  theV.nowledge  and 
experience  of  the  wise  and  the  good  of  every  age  and 
country.  If  he  does  not  pursue  this  course,  his  judi- 
cial opinions  will  not  be  respectable,  and  of  course 
they  will  not  be  respected.  The  law  will  bt  un- 
known, and  consequently  uncertain.  Nothing  vill 
be  settled  on  a  firm  and  solid  basis  —  everything  wi\1 
be  in  a  state  of  fluctuation.  This  will  be  a  fruitful 
source  of  litigation,  and  to  this  it  is  in  part  to  be 
ascribed  that  in  some  states,  I  will  not  mention  our 
own,  there  are  ten  times  as  many  lawsuits  in  pro- 
portion to  the  number  and  wealth  of  the  inhabitants, 


LIFE    OF    JUDGE    SMITH.  159 

as  in  others.  I  can  assure  you,  sir,  imperfectly  as 
the  duties  of  my  office  have  been  discharged,  (and 
no  man  can  be  more  sensible  of  this  imperfection 
than  I  am,)  I  have  been  for  the  last  three  years  as 
much  occupied  out  of  court,  in  the  way  I  have  men- 
tioned, as  I  have  been  engaged  in  court.  The  vaca- 
tion has  not  been  a  season  of  leisure  to  me,  and  I 
cannot  help  flattering  myself  that  by  these  means,  in 
some  small  degree,  more  business  has  been  done  and 
considerable  expense  saved,  both  to  the  public  and 
to  the  parties.  The  constitution  has,  in  my  opinion, 
wisely  prohibited  a  judge  of  the  superior  court  from 
holding  any  other  office ;  because  it  considers  him  as 
fully  occupied.  I  can  hardly  persuade  myself  that  a 
good  judge,  while  in  office,  will  be  fit  for  anything 
else.  His  mind  will  be  wholly  engrossed  with  tfte 
business  of  his  office,  and  when  that  is  the  case,  he 
will  derive  neither  pleasure  nor  advantage  from  other 
pursuits. 

"  If  there  is  any  one  who  imagines  that  this  office 
does  not  require  the  closest  attention,  and  the  most 
assiduous  and  constant  application,  I  must  refer  him 
to  those  judges  in  the  different  states,  who  have 
been  examples  of  what  I  recommend.  This  office 
requires  health,  though  it  has  no  tendency  to  give  or 
continue  it.  It  requires  the  best  part,  not  the  dregs 
of  life.  The  employment  of  a  judge  is  a  business 
that  cannot  be  slighted.  It  is  an  unpleasant  em- 
ployment ;  he  has  to  contend  with  ignorance,  knav- 
ery, and  with  prejudice  —  the  prejudice  which  every 
man  feels,  in  favor  of  his  own  cause.  He  acts  in 
public,  and  every  part  of  his  conduct  is  open  to  ob- 


160  LIFE    OF    JUDGE    SMITH. 

servation.  If  he  commit  any  improper  act,  he  is 
sure  to  be  detected  and  exposed  ;  if  he  is  ignorant, 
it  is  impossible  it  should  be  concealed.  He  must  not 
expect  popularity ;  he  whose  (express  duty  it  is  to 
deal  out  justice  to  others,  must  not  expect  justice 
himself.  The  losing  party  is  under  a  strong  tempta- 
tion to  arraign  his  knowledge  or  his  impartiality.  In 
short,  his  situation  may  be  compared  to  that  of  a 
sentinel,  who  is  always  on  duty  in  the  face  of  the 
enemy.  Such  is  my  opinion  of  the  arduous  em- 
ployment of  a  judge,  that  I  am  fully  persuaded  that 
ten  or  twelve  years'  faithful  performance  of  its  duties, 
such  as  they  are  in  this  state,  will  wear  out  the  best 
constitution,  and  leave  the  rnan,  if  it  leaves  him  life, 
nothing  but  the  comfortable  reflection  arising  from 
a  conscientious  discharge  of  duty.  If  there  is  any 
person  who  entertains  an  opinion  that  the  office  does 
not  require  professional  skill,  I  shall  hardly  be  per- 
suaded that  he  has  ever  looked  into  a  court  of  jus- 
tice, or  bestowed  a  moment's  reflection  on  the  sub- 
ject. 

"  Those  whose  lot  it  has  been  to  prosecute  or  de- 
fend their  just  rights,  when  invaded,  surely  are  of  a 
different  opinion.  Is  there  any  one  who  seriously 
believes  that  honesty  and  integrity  are  all  that  are 
necessary  in  an  advocate  at  the  bar  ?  Where  is  the 
man  who  would  think  himself  or  his  cause  safe  with 
an  honest  lawyer,  destitute  of  skill  in  his  profession, 
while  his  adversary  was  aided  with  counsel  possess- 
ing superior  knowledge,  if  the  judge  was  deficient 
in  legal  information  ?  Would  he  feel  no  apprehen- 
sion lest  the  superior  talents  of  the  advocate  should 


LIFE    OF    JUDGE    SMITH.  161 

mislead  the  judge,  however  upright  his  intentions  ? 
Is  honesty,  in  common  life,  a  sufficient  protection 
against  cunning  and  talents,  and  is  the  law  a  science 
where  a  man  may  become  a  proficient  without 
study  or  application  ?  If  you  require  professional 
knowledge  in  an  advocate,  why  not  in  a  judge  ?  It 
is  generally  supposed  that  there  is  one  side  in  a  court 
of  justice,  who  have  an  interest  in  perverting  the 
law  and  confounding  right  —  an  interest  in  obscur- 
ing the  cause,  instead  of  enlightening  the  court.  If 
this  be  correct,  and  if  the  judge  has  no  resources  of 
his  own,  how  is  he  to  detect  and  expose  such  at-, 
tempts  to  mislead  his  judgment  ?  Is  it  not  absurd 
that  a  judge,  when  seated  on  the  bench  to  dispense 
justice  according  to  law,  should  on  all  occasions  be 
under  the  necessity  of  learning  from  the  bar  what 
the  law  is  ?  Is  it  not  unseemly,  that  the  people 
should  in  a  court  of  justice  look  up  to  the  bar,  and 
down  upon  the  bench  ?  Will  parties  feel  satisfied 
with  the  decision  of  their  causes,  if  they  have  not 
the  fullest  confidence  in  the  knowledge,  as  well  as  in 
the  integrity  of  the  court  ?  In  these  observations  I 
certainly  mean  no  reflection  on  the  bar.  So  far  from 
entertaining  prejudices  against  the  profession,  it  is 
natural  to  suppose  that,  as  an  order  of  men,  I  highly 
respect  and  esteem  them.  But  still  I  maintain,  that 
in  the  order  of  things,  judges  should  not  be  less 
skilled  in  the  principles  of  law,  than  the  advocates 
who  manage  the  causes  at  the  bar.  And  yet  I  be- 
lieve this  superiority  in  the  advocate  will  always 
exist,  as  long  as  the  one  employment  gives  an  honor- 
able support,  and  the  other  scarcely  affords  a  scanty 
subsistence. 

14* 


162  LIFE    OF    JUDGE    SMITH. 

"  One  would  think  it  would  be  the  policy  of 
the  public  to  invite,  by  holding  out  suitable  en- 
couragement, the  most  eminent  at  the  bar  or  in  the 
state,  those  of  the  fairest  character  both  for  talents 
and  integrity,  to  a  seat  on  the  bench.  There  were 
at  a  late  period,  living,  ten  persons  who  had  resigned, 
and  two  who  declined  the  office  of  judge  of  the 
superior  court.  Three  are  lately  deceased.  Since 
the  revolution  the  judges  of  the  superior  court,  upon 
an  average,  have  held  the  office  less  than  five  years. 
Can  there  be  better  evidence  that  the  emoluments 
.are  not  considered  as  adequate  to  the  duties  ?  While 
a  judge  holds  the  office  no  more  than  five  years, 
have  we  much  reason  to  expect  uniformity  in  de- 
cisions ?  Do  we  not  lose  all  the  benefits  flowing 
from  experience  ? 

"  As  to  the  dignity  of  the  office,  I  do  not  wish 
for  any  salary  on  that  account.  I  believe  it  is  with 
this,  as  with  every  other  office  in  the  state,  the  honor 
and  dignity  of  the  office  depend  altogether  on  the 
manner  in  which  its  duties  are  performed.  It  is  the 
importance  of  the  office  which  requires  salary,  not 
its  dignity.  It  may,  however,  be  correct  enough  to 
say,  that  the  honor  and  dignity  of  the  state,  as  well 
as  the  true  interest  of  the  people,  require  that  the 
judges  of  the  superior  court  should  be  neither  indi- 
gent nor  dependent.  I  have  thus  taken  the  liberty 
to  mention  some  of  the  many  considerations  which 
have  occurred  to  my  mind,  as  reasons  why  the  com- 
pensation to  the  office  I  now  hold  should  be  rendered 
more  adequate  to  its  duties. 

"  If  these,  with  many  others  that  will  occur  to  every 


LIFE    OF    JUDGE    SMITH.  163 

member,  should  be  deemed  of  sufficient  importance, 
to  call  the  attention  of  the  legislature  to  the  subject, 
they  will  doubtless  receive  all  the  consideration  they 
deserve.  As  I  have  expressed  my  sentiments  with 
candor  and  frankness  on  this  unpleasant  subject,  I  in- 
dulge the  hope  that  they  will  be  candidly  received. 
If,  in  the  opinion  of  the  legislature,  the  public  interest 
requires  further  provision  for  the  office  which  I  at  pre- 
sent hold,  I  shall  rejoice.  Three  years'  practice  has 
made  the  duties  more  easy  to  me,  and  I  feel  that  I 
am  approaching  that  period  of  life,  when  the  em- 
ployment of  advocating  causes  at  the  bar  becomes 
irksome  and  unpleasant.  If,  on  the  contrary,  it 
should  be  thought  that  ample  provision  is  already 
made  for  the  office,  I  shall  cheerfully  acquiesce. 
There  may  be,  in  the  state,  persons  of  sufficient  for- 
tune to  enable  them  to  make  a  sacrifice  which  my 
circumstances  will  not  allow.  Doubtless  there  are  men 
of  sufficient  patriotism  to  induce  them  to  undertake  a 
very  arduous  and  difficult  office  ;  I  am  very  sure  that 
many  may  be  found  every  way  better  qualified  than 
I  am.  I  shall  trespass  no  longer  on  your  patience 
than  to  request  that  you  would  have  the  goodness  to 
lay  this  letter  before  the  honorable  body  over  which 
you  preside.  I  have  made  a  similar  communication 
to  the  house  of  representatives.  I  will  only  add  that 
an  early  expression  of  the  will  of  the  legislature  on 
this  subject,  as  it  will  determine  the  future  course  of 
my  life,  will  be  esteemed  as  a  great  favor.  I  have 
the  honor  to  be,  with  the  greatest  respect,  sir,  your 
most  obedient  servant.  J.  S." 

On  the  15th  of  June,  Judge  Smith  wrote  in  confi- 


164  LIFE     OF     JUDGE     SMITH. 

dence  to  his  friend,  John  C.  Chamberlain,  a  member 
of  the  legislature  :  "  I  have  just  heard  that  there  has 
been  a  committee  on  my  letter  to  the  two  houses, 
and  that  they  propose  reporting  fifteen  hundred  dol- 
lars. It  would  have  been  improper  to  have  named 
any  sum  in  my  communication  to  the  legislature.  I 
am  satisfied  with  that  proposed,  but  anything  less 
would  not  answer  my  purpose.  I  have  kept  regu- 
lar accounts  of  my  expenses  since  I  came  to  Exeter, 
and  upon  an  average,  they  have  exceeded  twelve 
hundred  dollars  a  year.  I  do  not  take  into  the 
calculation  my  expenses  on  the  circuit,  which  have 
annually  exceeded  three  hundred  dollars.  This  lat- 
ter sum  must  be  deducted  from  the  salary,  and  the 
remainder  is  the  real  compensation.  This  will  barely 
defray  the  expenses  of  my  family.  The  little  I  am 
now  worth  is  already  too  small  to  leave  as  the  sole 
dependence  of  my  wife  and  children,  when  I  go  from 
them.  God  knows  when  that  will  be.  It  is,  per- 
haps, an  event  at  no  great  distance  ;  at  any  rate,  it 
must  happen  in  a  few  years.  I  cannot  bear  to  see 
this  little  fund  diminish  as  I  wear  out.  I  mention 
these  things  by  way  of  apology  for  saying  that  I 
would  have  you  or  some  other  of  my  friends,  in 
case  there  should  be  a  disposition  to  grant  some- 
thing, but  less  than  fifteen  hundred  dollars,  (so 
as  to  leave  me  twelve  hundred  dollars  net,)  to 
declare  in  my  behalf,  that  I  cannot  accept  it,  and 
that  I  would  not  give  the  legislature  any  further  trou- 
ble on  my  account.  I  have  not  taken  this  step  with- 
out mature  reflection  and  consideration.  It  would 
mortify  me  if  the  legislature  should  think  me  alto- 


LIFE     OF     JUDGE     SMITH.  165 

gether  unworthy  of  the  office  I  hold,  but  I  can  bear 
even  this  mortification  better  than  poverty  and  de- 
pendence. I  have  hitherto  endeavored  to  act  my 
small  part  on  the  stage  of  life  honestly,  and,  with  the 
assistance  of  heaven,  I  will  not  disgrace  the  past  by 
the  future.  I  will  try  to  get  an  honest  livelihood  at 
the  bar,  and  I  do  not  despair." 

Before  Mr.  Chamberlain  received  this  letter,  a  reso- 
lution had  passed  the  house  by  a  vote  of  one  hundred 
and  one  to  fifty -seven,  and  the  senate  by  a  vote  of 
eleven  to  one,  fixing  the  salary  of  the  Hon.  Jeremiah 
Smith  at  fifteen  hundred  dollars  a  year,  during  his 
continuance  in  the  office  of  chief  justice.  This  reso- 
lution was  the  more  honorable  both  to  him  and  to 
them,  from  the  fact  that  a  majority  of  the  legislature 
were  opposed  to  the  political  principles,  which  he  was 
perfectly  well  known  to  profess. 

On  first  coming  to  the  office  in  1802,  Judge  Smith 
"  rode  the  circuit "  with  Judges  Farrar  and  Liver- 
more,  and  in  Strafford,  Rockingham  and  Hillsbo- 
rough,  declined  taking  any  active  part  in  the  trial  of 
causes.  Judge  Farrar,  from  whom  I  have  the  ac- 
count, attributed  it  partly  to  the  unwillingness  of  the 
chief  justice  to  take  his  place  at  once,  above  those 
who  were  his  seniors  in  office,  and  partly  to  his  diffi- 
dence about  trusting  himself  to  act,  before  he  could 
feel  at  ease  in  his  new  situation.  In  Cheshire  county 
an  important  cause  was  to  be  tried,  which  had  excited 
a  good  deal  of  interest,  and  which  had  already  been 
tried  at  three  different  times,  without  either  the  court 
or  the  jury  being  able  to  agree,  it  being  then  the 
practice  of  all  the  judges  who  chose  it  to  sum  up  to  the 


166  LIFE     OF     JUDGE     SMITH. 

jury,  so  that  the  judges  might  differ  on  the  law  of 
the  case,  as  well  as  the  jury  on  the  facts.  It  was 
the  case  of  Lyman  and  Foster.  Judge  Olcott  being 
a  parishioner  of  Foster,  the  minister  of  Charlestown, 
had  declined  giving  any  opinion,  and  the  Judges  Far- 
rar  and  Livermore,  had  attach  of  the  different  trials, 
charged  the  jury  on  opposite  sides.  At  Amherst, 
therefore,  they  agreed  between  themselves  that  they 
would  have  nothing  to  do  with  it  at  the  next  trial, 
but  would  leave  it  entirely  to  the  chief  justice,  and 
on  their  way  to  Keene,  told  him  that  he  must  take  it 
into  his  own  hands.  He  was  a  good  deal  moved, 
and  with  great  reluctance  assented.  The  trial  lasted 
two  days.  Pierrepont  Edwards,  then  a  very  distin- 
guished lawyer  of  Connecticut,  appeared  for  the 
plaintiff,  while  the  defendant  was  represented  by  Ben- 
jamin West,  of  Charlestown,  "  one  of  the  most  sue 
cessful  advocates,"  says  Mr.  Webster,  "  if  not  the 
most  successful,  before  a  jury,  (hat  ever  practised  in 
the  courts  of  New  Hampshire ;  a  person  who,  to  singu- 
lar powers  of  popular  logic  and  persuasion,  added  the 
weight  of  the  utmost  purity  and  respectability  of  pri- 
vate character  ;  and  one  who,  if  he  had  not  always 
refused  public  office,  could  not  have  failed  to  make 
a  figure  in  the  national  councils,  into  which  he  de- 
clined entering  after  being  elected  by  his  fellow-citi- 
zens a  representative  in  congress."  '  Judge  Smith 


1  There  was  no  man  whom  Judge  Smith,  down  to  the  close  of  his  life, 
remembered  with  a  more  affectionate  respect.  He  spoke  of  him  as  ex- 
celling at  the  bar,  particularly  in  the  narration  of  facts.  In  the  case  of 
Lyman  and  Foster,  Mr.  West  spoke  of  the  plaintiff  as  a  rich  man,  who 
could  send  into  another  state  for  the  ablest  advocate,  while  his  client, 


LIFE     OF     JUDGE     SMITH.  167 

did  not  sleep  a  moment  during  the  night  after  the 
argument,  and  the  next  day,  on  rising  in  court  to  give 
his  charge,  which  had  been  almost  entirely  written 
out,  he  was  so  agitated,  and  his  hand  trembled  so 
much,  that  he  could  not  hold  his  papers,  but  was 
obliged  to  sit  down,  and  deliver  it  from  his  seat ;  a 
practice  which  he  always  afterwards  continued,  and 
which  has  been  kept  up  by  his  successors.  In  this 
charge  he  first  urged  a  maxim  on  which  he  always 
afterwards  laid  great  stress,  that  in  civil  matters  it  is 
often  of  greater  consequence  that  a  cause  be  decided, 
than  that  it  be  decided  right.1  The  jury  agreed  in 
finding  a  verdict  for  the  defendant. 

From  the  time  when  he  entered  upon  his  office  in 
1802,  till  he  left  it  in  1809,  Judge  Smith  gave  him- 
self to  it  with  his  whole  heart.  He  went  through 
nearly  the  whole  circuit  of  the  state  twice  a  year, 
travelling  over  roads  often  so  bad,  that  he  could  go 
only  on  horseback,  and  bridges,  of  which,  many  years 
afterwards,  he  said  that  he  remembered  well  their 
condition  when  he  had  occasion  to  pass  them  ;  "  and 

"  the  poor  minister  of  a  country  town,  was  obliged  to  put  up  with  such 
counsel  as  he  could  get  among  his  own  poor  parishioners."  The  words 
must  have  been  effective,  to  be  remembered  now,  after  the  lapse  of  more 
than  forty  years.  They  were  repeated  to  me  by  Dr.  Amos  Twitchell, 
of  Keene.  Judge  Smith  used  to  say,  that  Mr.  West,  when  a  widower, 
questioning  him  respecting  two  ladies  of  their  acquaintance,  he  replied, 
that  the  one  "  loved  to  wait  upon  her  friends,  the  other  to  be  waited  on  by 
them."  Mr.  West  married  the  former;  the  other  also  was  married,  and 
the  result  of  the  two  marriages,  Judge  Smith  thought,  showed  the  wis- 
dom of  his  friend's  choice. 

'  This,  like  every  other  very  pointed  expression,  must  be  received,  as 
it  undoubtedly  was  by  Judge  Smith,  with  some  qualification.  "  It 
should  be,"  says  a  high  legal  authority,  "  in  civil  cases  some  risk  had 
better  be  run  of  deciding  a  cause  wrong,  rather  than  not  to  decide  it  at 
all,  or  even  very  unreasonably  to  protract  the  controversy." 


168  LIFE    OF    JUDGE    SMITH. 

certainly,"  he  added,  "  he  must  have  been  destitute 
of  piety,  who  did  not  return  thanks  to  Providence, 
when  he  found  himself  and  his  horse  safe  on  the  fur- 
ther side."  When  he  came  home,  worn  down  by  a 
laborious  circuit,  he  usually  refreshed  himself  for  a 
week  or  two,  by  reading  novels,  or  any  other  species 
of  light  literature  that  might  be  within  his  reach. 
The  remainder  of  his  vacation  was  spent  in  constant 
application  to  the  severe  studies  of  his  profession,  re- 
viewing his  decisions,  examining  legal  questions  on 
points  reserved  for  the  purpose,  extending  his  know- 
ledge to  the  less  frequented  departments  of  the  law, 
enriching  his  mind  with  the  principles  of  legal  sci- 
ence, to  be  drawn  from  theological  investigations,  or 
an  enlarged  acquaintance  with  history,  and  doing  all 
this  with  reference  to  a  better  system  of  legal  prac- 
tice and  a  better  administration  of  justice.  He  went 
scarcely  at  all  into  society,  and  sometimes  for  weeks 
was  hardly  seen  without  the  doors  of  his  own  house. 
Almost  his  only  relaxation  was  with  his  own  family. 
It  is  impossible  for  those  who  did  not  know  him  in 
his  own  house,  to  have  any  idea  how  much  amuse- 
ment he  could  extract  from  the  most  trifling  events  ; 
and  how  much  incidents,  which  others  leave  as  un- 
worthy of  notice,  were  made  to  contribute  to  the 
animation  and  real  enjoyment  of  the  whole  house- 
hold, while  they  had  no  small  share  of  influence  in 
preserving  the  vigor  and  elasticity  of  his  constitution. 
It  was  a  saying  of  Paley,  that  "  he  who  is  not  a  fool 
half  the  time,  is  a  fool  all  the  time."  And  the  reader 
probably  remembers  the  story  of  Robert  Hall,  who, 
on  being  reproached  by  a  very  dull  preacher  with 


LIFE    OF    JUDGE    SMITH.  169 

the  exclamation,  "  How  can  a  man  who  preaches  like 
you,  talk  in  so  trifling  a  manner? "  replied,  "  There, 
brother,  is  the  difference  between  us  ;  you  talk  your 
nonsense  in  the  pulpit,  I  talk  mine  out  of  it."  Judge 
Smith  used  often  to  tell,  with  great  zest,  the  story  of 
Dr.  South,  I  think,  who,  in  the  midst  of  a  frolic,  see- 
ing an  acquaintance  approaching,  exclaimed,  "  Stop, 
we  must  be  grave  now,  there  is  a  fool  coming." 
Certainly  no  one  without  a  true  relish,  not  only  for 
wit,  but  for  fun,  can  at  all  appreciate  Judge  Smith's 
character,  or  fully  understand  even  his  more  serious 
conversation  and  writings.  His  humor,  like  the  foam 
and  phosphoric  light  in  the  wake  of  a  man-of-war, 
often  marked  the  progress  of  his  mind  through  sub- 
jects the  most  profound,  and  in  his  moments  of  re- 
laxation it  burst  out  and  flashed  in  all  manner  of  antic 
and  fantastic  shapes.  He  would,  for  instance,  amuse 
himself  and  family,  by  imagining  them  in  strange 
situations,  with  people  perhaps  the  most  incongruous, 
and  then  would  carry  on,  with  the  drollest  effect, 
long  conversations  between  the  persons  thus  gro- 
tesquely brought  together.  Sometimes  the  assumed 
names  would  be  preserved,  and  the  farce  or  romance 
kept  up  for  weeks  together,  as  if  it  were  a  fact  con- 
nected with  their  daily  life.1 

1  The  most  undignified  instance  of  his  love  of  fun,  that  has  come  t&my 
knowledge,  was  told  me  by  the  Hon.  Levi  Woodbury.  An  old  physician, 
imprisoned  in  Exeter  for  debt,  was  in  the  habit  of  making  frequent  and 
long  calls  on  Judge  Smith,  whose  house,  unfortunately,  was  within  the 
limits  of  the  jail.  One  afternoon,  the  judge,  seeing  his  venerable  friend 
coming,  threw  himself,  as  if  in  great  pain,  on  the  floor,  and  word  was  ta- 
ken to  the  door  that  he  could  see  no  one.  The  doctor,  suspecting  how  the 
matter  was,  said  he  could  not  possibly  abandon  his  friend  at  such  a  time, 
and,  rushing  into  the  room,  threw  himself  down  by  his  side.  The  appli- 
15 


170  LIFE    OF    JUDGE    SMITH. 

If  there  was  anything  in  which  he  showed  himself 
a  man  of  genius,  it  was  in  the  humor  which  flashed  out 
through  every  feature  of  his  mind  and  face.  In  the 
tone  of  his  voice,  the  roguish  play  about  his  mouth, 
and  the  fire  of  his  eye,  there  was  an  undefinable 
something  which  gave  relief  to  a  dry  discussion,  and 
imparted  at  least  a  momentary  zest  to  expressions, 
which  might,  otherwise,  have  fallen  lifeless  from  his 
lips.  He  did  not  require  wit  or  intellectual  superi- 
ority in  his  daily  associates.  He  was  always  fond  of 
the  society  of  ladies,  and  no  one  could  respect  them 
more  than  he  ;  but  the  gentle  and  amiable  qualities, 
united  with  intelligence  and  good  sense,  were  what 
most  engaged  his  affections.  It  might  be  said  of  him, 
as  of  Lord  Mansfield,  that  "  his  professional  labors 
were  great,  and  it  was  natural  that  he  should  resort 
to  society  more  for  relaxation  and  rest  of  mind,  than 
for  anything  that  could  put  him  upon  fresh  exertions. 
Even  dulness,  so  long  as  it  was  accompanied  with 
placidity,  was  no  absolute  disrecommendation  of  his 
private  hours ;  it  was  a  kind  of  cushion  to  his  under- 
standing." 

These,  however,  were  but  moments  of  respite 
from  severe  labor.  The  only  regular  exercise  that 
he  took,  was  in  sawing,  splitting,  and  bringing  in  the 
wood  for  his  fire  ;  employments  which  he  kept  up 
till  the  last  years  of  his  life,  and  which  he  always 
performed  with  great  exactness.  These  things  un- 
doubtedly contributed  much  to  the  soundness  both  of 
his  body  and  mind,  but  he  was  taxing  his  constitu- 

cation  was  perfectly  successful,  and  the  patient  was  soon  able  to  sit  up  ; 
but  the  physician,  fearing  a  relapse,  continued  with  him  till  evening. 


LIFE    OF    JUDGE    SMITH.  171 

tion  beyond  his  strength.  His  friends  saw  that  he 
was  wearing  himself  out,  and  he  evidently  thought 
that  his  life  must  be  a  short  one.  His  letters  often 
speak  of  this,  and  sometimes,  though  very  seldom, 
show  something  of  the  low  spirits  that  are  connected 
with  disease.1  They  furnish  little  information  re- 
specting his  professional  pursuits  ;  but  afford  glimpses 
of  his  peculiar  mode  of  thought  and  feeling,  as  in 
the  following  extracts  from  letters  to  William  Plum- 
er,  then  a  senator  in  congress,  and  afterwards  gov- 
ernor of  New  Hampshire. 

Exeter,  November  21,  1803.  "  My  dear  friend  : 
I  received  yours  of  the  3d  of  November,  a  few  days 
ago.  I  am  much  better  for  the  fall  circuit.  This  I 
ascribe  to  my  devoting  myself  less  to  the  business  of 
the  court  than  usual,  and  more  to  riding  on  horse- 
back. I  do  not  intend  to  engage  in  any  law  study 
this  vacation,  as  I  am  determined  not  to  think  much, 
and  yet  abhor  idleness  as  much  as  nature  does  a 
vacuum."'  February  11,  1804.  "As  to  myself,  I 
have  too  much  zeal,  for  the  crazy  house  of  my  taber- 
nacle. Whatever  my  hands  find  to  do,  I  do  it  with 
all  my  might,  and  I  find  that  continued,  unremitted 
attention,  for  a  considerable  length  of  time,  fa- 


1  From  a  letter  to  his  brother  Samuel,  December,  1806  :  "  He  might 
hare  acjded  that  I  am  now  forty-seven,  with  a  sickly  constitution,  in  an 
office  which  does  not  maintain  me,  and  with  a  family  the  most  helpless 
in  New  England.  You  see  I  am  not  in  good  spirits  ;  I  am  sincerely 
glad  you  are.  I  hope  they  will  continue,  and  that  your  endeavors  will 
be  crowned  with  success.  I  hope  this  on  your  own  account,  on  account 
of  your  wife  and  children,  and  on  account  of  my  own.  As  to  myself,  it 
is  of  little  consequence  what  becomes  of  me  :  and  I  have  no  doubt,  as 
long  as  I  live  I  shall  have  meat  to  eat,  and  raiment  wherewithal  to  be 
clothed." 


172  LIFE    OF    JUDGE    SMITH. 

tigues  me  more  than  it  did  a  few  years  ago."  Jan- 
uary 1,  1805.  "  I  intended  a  winter  of  leisure, 
but  I  find  as  much  difficulty  in  spending  my  time 
idly,  as  some  others  do  in  exertion.  In  my  con- 
science I  believe  I  am  doing  no  good,  and  yet  I  am, 
under  the  influence  of  this  conviction,  all  the  time 
doing.  What  a  mercy  it  is  that  I  am  not  addicted 
to  drinking,  gambling,  horse-racing,  cock-fighting, 
(you  see  I  speak  to  you  as  a  southern  man.)  or  any 
other  such  like  vices,  for  I  am  sure  I  should  never 
leave  them  off,  as  long  as  I  had  liquor,  cards,  and 
money  or  credit,  horses,  cocks,  &c.  Some  evil  ge- 
nius has  been  for  years  stirring  me  up,  to  look  a  little 
into  the  science  of  pleading ;  and  my  powers  of 
resistance  at  this  time  happening  to  be  weaker,  or 
the  temptation  stronger,  I  have  done,  as  good  men 
have  done  before  me,  yielded,  and  am  now  enve- 
loped in  counts,  bars,  replications,  estoppels,  traverses, 
&c.  You  will  say,  and  say  justly,  '  what  the  deuse 
has  a  New  Hampshire  lawyer  or  judge  to  do  with 
special  pleadings  ?  '  If  he  acquires  any  knowledge, 
standing  alone,  he  will  have  nothing  for  his  pains  but 
mortification.  He  must  be  disgusted  with  every  re- 
cord he  hears  read,  and  can  never  hope  to  reduce 
our  horrible  jargon  into  form  or  shape.  All  this  is 
true.  Surely  there  must  be  something  in  destiny, 
which  you  know  it  is  in  vain  to  resist.  I  can  no 
more  help  trying  to  be  a  special  pleader,  than  Cocke 
can  help  being  an  able  statesman,  or  Sam  Smith 
a  modest,  unassuming,  correct  senator.  Our  des- 
tinies will  have  it  so.  I  mean,  however,  that  you 
should  consider  all  this  as  an  apology  for  not  writing 


LIFE    OF    JUDGE    SMITH.  173 

often,  and  when  I  do  write,  writing  a  la  mode  special 
pleading,  as  it  respects  entertainment." 

It  is  not  in  my  power,  indeed  it  hardly  belongs  to 
a  personal  biography,  and  would  not  be  interesting 
to  the  general  reader,  to  trace  minutely  the  changes 
which  Judge  Smith  introduced  into  the  administra- 
tion of  the  law.  "  With  him,"  I  use  the  words  of 
the  present  able  chief  justice  of  New  Hampshire, 
"  there  arose  a  new  order  of  things.  Those  mem- 
bers of  the  bar,  who  were  diligent  and  attentive  to 
their  business,  were  commended  and  encouraged,  and 
those  who  were  negligent  were  lectured  and  repri- 
manded. There  was,  of  course,  greater  preparation 
on  the  part  of  the  bar,  and  greater  investigation  and 
deliberation  on  the  part  of  the  bench.  A  general 
practice  was  very  soon  adopted,  for  but  one  judge  to 
charge  the  jury  in  each  case.1  Points  of  law  were 
ruled,  and  cases  saved  for  more  thorough  examina- 
tion. New  trials  were  granted  for  errors  in  matters 
of  law,  but  when  this  practice  began,  the  rule  was  to 
grant  no  new  trial  for  any  such  error  where  the  case 
was  open  to  review.2  There  was,  in  the  outset,  con- 


1  In  a  letter  to  William  Plumer,  Itth  of  February,  1804,  Judge  Smith 
says  :  "  I  am  just  returned  from  Portsmouth,  not  a  little  fatigued.     A. 
Livermore  did  not  attend.     I  do  not  know  how  it  is,  but  it  really  seems 
to  me  that  there  is  no  use  in  having  a  court  that  try  causes  with  a  jury, 
to  consist  of  more  than  one  judge.    Our  friend  W.  H.  A.  is  chafed  in 
his  mind,  and  the  venerable  old  judge  grows  more  and  more  indifferent 
to  the  business  of  the  court." 

2  The  first  intimation  of  a  change  in  this  respect,  arose  in  a  case 
where  a  young  woman,  who  was  possessed  of  some  property,  died  at  the 
house  of  a  brother,  who  was  worthless  ;  and  he,  without  any  authority, 
took  a  promissory  note  which  belonged  to  her  estate,  presented  it  to  the 
maker,  and  received  payment.     The  father,  who  was  entitled  as  heir, 

15* 


174  LIFE    OF    JUDGE    SMITH. 

siderable  opposition  to  this  correction  of  errors,  but 
it  was  sustained.  Manuscript  reports  of  that  time 
have,  it  is  understood,  been  preserved,  but  have  never 
been  given  to  the  public." 

Before  Judge  Smith,  there  had  been,  on  the  part  of 
the  judges  of  New  Hampshire,  little  attention  given 
to  the  law  as  an  established  science.  The  justice  of 
the  case  was  held  up  as  the  law  of  the  case  ;  and 
the  jury  were  to  judge  both  of  the  law  and  the  fact. 
Of  course  there  could  be  no  uniformity  in  the  deci- 
sions. There  were  no  fixed  principles  ;  but  each 
case  must  have  been  decided  according  to  the  im- 
pulse of  the  jury,  who  could  have  no  rule  but  their 
own  fluctuating  ideas  of  justice.  It  is  not  difficult 
to  see  what  a  door  must  have  been  left  open  for  all 
the  arts  of  the  profession,  the  passionate  appeals,  the 
low  cunning,  through  which  law  is  neglected  and  jus- 
tice set  aside. 

Judge  Smith  required  a  strict  attention  to  the  law, 
even  in  its  minute  forms  ;  wisely  judging  that  seve- 
rity, even  in  technical  matters,  though  sometimes  it 
might  bear  hard  on  individual  cases,  was  yet  the  only 
secure  preservative  of  justice.  Exactness  in  form, 


took  administration,  and  brought  an  action  against  the  maker  of  the 
note,  to  recover  the  money,  on  the  ground  that  the  payment  to  the 
brother,  who  had  no  authority  to  receive  it,  constituted  no  discharge. 
The  court  so  charged  the  jury,  but  they  returned  a  verdict  for  the  de- 
fendant ;  and  the  foreman,  upon  being  asked  on  what  ground  they 
brought  in  such  a  verdict,  said  he  thought  if  a  man  paid  his  note  once, 
that  was  sufficient.  The  action  was  reviewed,  and  on  the  trial  of  the 
review,  Chief  Justice  Smith  said,  had  a  motion  been  made,  he  should 
have  been  induced  to  set  aside  the  former  verdict,  the  case  was  so 
strong. 


LIFE    OF    JUDGE    SMITH.  175 

leads  to  exactness  in  the  whole  mental  discipline, 
and  they  who  are  deepest  in  the  principles  of  a 
science,  are  always  among  those  who  are  the  most 
exact  in  its  details.  No  warrior  was  ever  more  ex- 
act or  exacting  in  all  that  belonged  to  the  minute 
discipline  of  each  soldier  than  Napoleon,  and  it  was 
this  exactness  in  details  that  enabled  him  to  carry 
out,  in  a  battle  or  a  campaign,  the  large  and  compre- 
hensive rules  of  his  science.  So  it  must  be  in  every 
department.  General  knowledge  is  but  another 
name  for  general  ignorance.  In  order  to  be  of  any 
practical  use,  knowledge  must  be  particular,  minute, 
and  exact ;  and  never  more  so  than  in  the  applica- 
tion of  legal  principles,  where  so  many  warring  in- 
terests and  prejudices  come  in,  to  turn  justice  aside 
from  its  true  ends.  Technical  rules  and  forms  are 
the  defences  which  have  been  thrown,  by  the  wis- 
dom of  ages,  around  the  pure  abstractions  of  the 
law,  to  guard  them  from  human  infirmities,  and 
secure  them  in  their  administration  from  the  influ- 
ence of  fear,  enmity,  compassion,  and  whatever  other 
momentary  impulses  might  interfere  with  the  straight- 
forward course  of  justice.  These  were  the  views 
entertained  by  Judge  Smith,  and  which,  in  his  judi- 
cial character,  he  labored  earnestly  to  practise  and 
enforce  ;  and  with  such  success,  that  before  he  left 
the  bench  there  was  probably  no  state  in  the  union 
where  the  law  was  more  strictly  administered.1  In- 


1  Mr.  Webster  has  been  heard  to  say,  that  having  practised  in  many 
courts,  beginning  with  that  of  George  Jackman,  justice  of  the  peace  for 
the  county  of  Hillsborough,  who  had  held  a  commission  from  the  time 


176  LIFE     OF     JUDGE     SMITH. 

deed  the  matter  was  carried  so  far,  that  the  New 
Hampshire  practice  has  become  almost  proverbial 
for  its  severity,  and  has  sometimes  been  held  up 
as  inconsistent  with  the  courtesy  that  becomes  the 
members  of  a  liberal  and  highly  respectable  pro- 
fession. 

There  may  have  been  something  in  the  early  train- 
ing of  the  great  New  Hampshire  lawyers,  which, 
while  it  brought  out  their  strength,  left  them  without 
the  urbane  accomplishments  and  graces,  in  their 
professional  intercourse,  which  sometimes  belong  to 
those  who  have  been  born  and  bred  amid  the  luxuri- 
ous refinements  of  society.  Their  gigantic  minds, 
grappling  with  hard  questions,  and  powerfully  moved 
by  all  that  gives  excitement  to  debate,  could  not  al- 
ways choose  the  most  courtly  words,  and  it  is  not 
impossible  that,  from  fear  of  giving  undue  advantage, 
they  may  have  been  in  the  habit  of  yielding  too 
little  to  what  may  be  called  the  courtesy  of  the  bar. 
But  it  may  well  be  questioned,  in  the  first  place, 
whether  the  practice  as  a  general  rule,  of  yielding 
nothing  which  the  law  in  its  utmost  rigor  requires, 
is  not  the  most  favorable  to  the  strict  administration 


of  George  the  Second,  and  going  up  to  the  court  of  John  Marshall,  at 
Washington,  he  had  never  found  a  judge  before  whom  it  was  more 
pleasant  and  satisfactory  to  transact  business  than  before  Chief  Justice 
Smith  ;  that  he  had  known  no  judge  more  quick  in  his  perceptions, 
more  ready  with  all  ordinary  learning,  or  possessing  more  power  to 
make  a  plain  and  perspicuous  statement  of  a  complicated  case  to  the 
jury.  He  added,  that  with  Chief  Justice  Smith,  industry  in  preparation 
on  the  part  of  the  counsel,  research  into  the  points  of  law,  and  a  frank 
and  manly  presentment  of  the  whole  case,  placing  it  upon  its  true 
merits,  without  disguise  or  concealment,  would  go  as  far  for  the  mainte- 
nance of  truth  and  justice,  as  with  any  judge  he  had  ever  known. 


LIFE    OF    JUDGE    SMITH.  177 

of  justice  ;  and  secondly,  whether  this  extreme  se- 
verity, when  once  it  has  become  the  settled  rule  of 
practice,  may  not  be  perfectly  consistent  with  the  ur- 
banity and  kindness  that  should  mark  the  intercourse 
of  gentlemen,  in  all  their  relations. 

But,  while  laboring  to  introduce  a  practice  con- 
forming to  strict  technical  rules,  Judge  Smith  held 
always  in  great  contempt  those  lawyers J  who,  unable 
to  grasp  the  law  in  all  its  length  and  breadth,  would 
seize  on  some  of  its  minute  forms,  and  make  every- 
thing yield  to  them.  We  have  seen  how  large  and 
generous  were  his  views  of  legal  culture.  No  branch 
of  knowledge  came  amiss.  With  him  the  law  was 
not  a  collection  of  arbitrary  rules,  to  be  learned  by 
rote,  and  administered,  each  according  to  its  own 
letter.  It  was  a  great  and  comprehensive  system, 
proceeding  from,  and  sustained  by,  the  principles  of 
universal  reason,  according  to  which,  each  and  all  of 
its  provisions  were  to  be  interpreted  and  applied.  It 
was  only  as  springing  from,  and  subordinate  to,  these 
central  principles,  that  legal  forms  engaged  his  re- 
spect. He  loved  to  observe  the  exact  letter,  only  so 
far  as  it  embodied  the  exact  spirit,  of  the  law  ;  and 
among  the  records  which  he  has  left  of  his  private 
thoughts,  are  these  emphatic  words  —  "  If  the  world 
should  be  pleased  to  speak  of  me  after  I  am  dead,  let 
them  say,  he  was  a  judge  who  never  permitted  justice 
to  be  strangled  in  the  nets  of  form." 

The  same  general  remark  applies  also  to  the  esti- 


1  "  Isti  minuti  philosophi,"  as  Cicero  calls  the  corresponding  class  of 
philosophers,  unless  the  expression  apply  more  properly  to  the  class 
mentioned  in  the  next  paragraph. 


178  LIFE     OF     JUDGE   SMITH. 

mation  in  which  he  held  the  extreme  refinements  and 
subtle  reasonings  upon  the  law,  which,  with  very  acute 
minds,  holds  the  same  place  as  minute  forms,  with 
minds  of  a  different  character.  He  knew  how  to 
analyze  an  intricate  subject,  to  throw  aside  that  which 
is  not  essential,  and  follow  with  singular  acuteness 
each  particular  fibre,  from  the  topmost  branch  to  the 
very  root.  He  knew,  also,  that  the  most  important 
questions  turn  sometimes  upon  an  exceedingly  small 
pivot.  But  he  had  great  confidence  in  plain,  common- 
sense  views,  and  though  highly  entertained  by  the 
exhibition,  (which  he  must  often  have  witnessed  at 
the  bar,)  of  extreme  logical  ingenuity,  he  looked 
upon  it  as  a  perversion,  rather  than  the  legitimate  use 
of  reason,  and  always  distrusted  its  results.  After 
quoting  Lord  Eldon's  remark,  "  There  is  no  mistake 
so  foolish,  as  to  suppose  a  judge  will  not  alter  his 
opinion  ;  I  am  sure  it  has  often  occurred  to  me,  that 
I  have  set  about  to  see  if  I  could  not  alter  my  opin- 
ion,"—  Judge  Smith  adds,  "  I  have  seen  a  judge 
laboring  to  alter  his  opinion.  He  often  succeeded, 
and  often  from  right  to  wrong,  abandoning  a  plain, 
sound,  common-sense  opinion,  for  one  merely  inge- 
nious, plausible,  &c." 

Another  quality,  for  which  Judge  Smith  was  emi- 
nently distinguished  on  the  bench,  was  his  business 
talent.  To  this  he  attached  great  importance. 
"  When  men,"  he  says,  "  have  been  considering  the 
qualifications  of  a  judge,  it  is  astonishing  that  they 
should  overlook  experience  in  business.  Who  can 
tell  how  much  it  contributes  to  despatch  ?  It  greatly 
exceeds  acuteness  of  parts,  or,  rather,  the  latter  can 


LIFE    OP    JUDGE    SMITH.  179 

do  little  without  the  former."  He  required  that 
every  man  connected  with  the  court  should  be  ready 
when  his  time  came.  By  this  habit  of  punctuality, 
by  a  more  orderly  and  systematic  arrangement  of 
business,  by  seizing  on  the  real  points  at  issue,  and 
excluding  irrelevant  matter,  and  especially  by  his 
own  promptness  and  decision,  he,  without  hurry  or 
indecent  haste,  did  much  to  avoid  the  wearisome  de- 
lays which  often  clog  the  wheels  of  justice,  and  bring 
upon  it  so  heavy  a  reproach. 

Judge  Smith  always  paid  particular  attention  to 
young  men  ;  and  there  are  many  who  gratefully  ac- 
knowledge their  obligation  to  him,  for  the  encour- 
agement he  gave  them  as  they  were  entering  upon 
their  profession.  Perhaps  the  circumstances  under 
which  he  was  himself  introduced  to  the  bar,  had 
always  some  influence  upon  him ;  but  he  had  from 
nature,  I  believe,  a  warm  sympathy  and  fellow-feeling 
for  the  young.  He  loved  to  watch  their  progress, 
and  where  he  saw  marks  of  real  promise,  could  easily 
bear  with  the  indiscretions  that  arise  from  want  of 
experience,  and  the  irregularities  that  proceed  rather 
from  the  superabundance  of  animal  spirits,  than  the 
superfluity  of  naughtiness.  He  was  ready  to  pardon 
much  to  the  ebullition  of  youthful  feeling,  provided 
that  he  saw,  underneath,  ingenuousness  of  character 
and  a  purpose  of  self-improvement.  There  was  no- 
thing on  which  he  more,  or  perhaps  more  justly, 
prided  himself,  than  the  faculty  of  reading,  in  its 
early  developments,  the  man's  future  history. 

At  the  court  holden  in  Hillsborough  county,  in 
1806,  a  young  man  who  had  been  admitted  as  an 


180  LIFE     OF     JUDGE     SMITH. 

attorney  but  not  as  a  counsellor,  appeared  with  a 
cause  of  no  great  pecuniary  importance,  but  of  some 
interest  and  some  intricacy.  Though  not  then  of 
such  advanced  standing  at  the  bar,  as  to  be  entitled 
to  address  the  jury,  he  was  yet  allowed  to  examine 
the  witnesses,  and  briefly  to  state  his  case  both  upon 
the  law  and  the  facts.  Having  done  this,  he  handed 
his  brief  to  Mr.  Wilson,  the  senior  counsel,  for  the 
full  argument  of  the  matter.  But  the  chief  justice 
had  noticed  him,  and  on  leaving  the  court-house, 
said  to  a  member '  of  the  bar,  that  he  had  never  be- 
fore met  such  a  young  man  as  that.  It  was  Daniel 
Webster,  and  this  was  his  first  action  before  the 
court. 

It  should  be  noted,  however,  that  Judge  Smith 
had,  before  this,  a  long  and  friendly  acquaintance 
with  Mr.  Webster's  father.  They  had  known  each 
other  in  the  times  of  the  revolution.  They  had  been 
together  at  Bennington  ;  and  when  Ebenezer  Webster 
was  made  a  judge  of  the  court  of  common  pleas, 
about  the  year  1791,  he  became  a  member  of  a  court, 
before  which  Judge  Smith  practised  many  years  in 
the  earlier  part  of  his  professional  life.  Judge  Web- 
ster was,  according  to  all  accounts,  a  man  for  whom 
strong  good  sense,  integrity  of  purpose  and  activity 
of  mind,  had  done  whatever  those  qualities  can  do  to 
fit  a  man  to  be  a  judge  who  yet  wanted  a  suitable 
education  for  judicial  employments.  He  entertained 
the  most  exalted  opinion  of  Judge  Smith,  and  was 
one  of  his  warmest  supporters  during  his  continuance 
in  congress.  It  may  be,  therefore,  that  Judge  Smith's 

1  General  James  Miller,  to  whom  I  am  indebted  for  the  anecdote. 


LIFE     OF     JUDGE     SMITH.  181 

prediction  of  the  future  eminence  of  the  son,  was 
strengthened  by  his  feeling  of  friendship  for  the  fa- 
ther.1 

The  character  of  Judge  Smith's  advice  to  young  law- 
yers may  be  understood  from  the  following  paragraphs 
taken  from  his  common-place  book  :  "  Many,  very 
many  leisure  hours,  has  a  young  lawyer,  before  he  can 
fairly  and  honestly  get  into  practice.  I  say  honestly, 
meaning  honorably,  for  he  may  push  himself  in  dis- 
honorably, and  will  be  sure  to  pay  for  it  in  the  end  — 


1  For  the  account  I  have  here  given  of  Judge  Webster,  as  well  as  for 
his  kind  and  important  assistance  in  many  ways,  I  must  acknowledge 
my  obligations  to  George  Ticknor,  Esq.  A  speech  by  the  Hon.  Charles 
H.  Warren,  at  the  dinner  of  the  New  England  Society,  in  New  York, 
December,  1844,  contains  some  further  interesting  particulars  respecting 
Judge  Webster.  "  In  the  olden  time,"  so  the  speech  is  reported  in  the 
newspapers,  "  there  was  a  man  in  New  Hampshire,  who  in  his  youth 
was  '  bound  apprentice,'  as  we  call  it  there,  to  a  farmer;  and  the  farmer 
was  bound  by  his  covenants  to  give  him  three  months'  schooling  in  the 
year  —  a  good  old  Yankee  custom,  and  I  trust  one  also  in  New  York; 
but  unlike  Yankee  masters  in  general,  he  failed  to  give  the  boy  an 
hour's  schooling,  and  he  never  had  one  till  the  day  of  his  death.  In  the 
old  French  war  of  1756,  this  boy  entered  the  army  as  a  private,  and  he 
fought  himself  up  to  a  commission,  first  as  a  warrant  officer,  then  as  an 
ensign,  and  upon  the  peace  of  Paris,  in  1763,  he  left  the  army,  came 
home,  and  his  first  act  upon  his  return,  was  to  bring  an  action  against 
his  master  for  a  breach  of  his  covenant  in  not  sending  him  to  school. 
(Laughter  and  cheers.)  And  the  master  compromised  his  claim  and 
gave  him  a  tract  of  land  that  is  the  family  homestead  now.  The  war  of 
the  revolution  came,  and  this  same  man  now  a  captain  of  militia,  went 
with  his  company  to  West  Point,  and  was  there  at  the  time  of  Arnold's 
treason.  And  two  nights  after  that  treason,  he  stood  guard  before 
Washington's  head  quarters,  and  the  next  morning  Washington  thanked 
him  in  person  for  his  vigilance  and  fidelity.  Well,  that  man  has  left  a 
son,  and  that  son  has  often  mounted  guard  since,  when  he  thought  trea- 
son was  working  in  the  American  camp.  The  father's  name  was  Eben- 
ezer  Webster!  (A  spontaneous  and  tremendous  mark  of  applause  — 
waving  of  handkerchiefs  and  most  enthusiastic  cheering.)  I  see  it 
needed  no  prophet  to  tell  what  the  son's  name  was  !  (Renewed  cheer- 
ing.)" 

16 


182  LIFE     OF     JUDGE     SMITH. 

in  loss  of  fame,  friends,  and  even  loss  of  business. 
Let  these  leisure  hours  be  spent  in  acquiring  know- 
ledge ;  he  need  not  be  afraid  of  having  too  large  a 
stock  for  his  business,  when  fairly  introduced."  In 
another  place,  after  quoting  the  maxim,  "he  that 
would  climb  a  tree  must  grasp  by  the  branches,  not 
by  the  blossoms,"  he  adds :  "  No  man  ever  became 
distinguished  as  a  scholar,  a  statesman,  or  a  profes- 
sional man,  who  felt  no  other  stimulus  than  the  pre- 
sent pleasure  derived  from  his  studies.  The  pleasure 
is  the  reward,  the  consequence  rather  than  the  efficient 
cause.  He  must  not  follow  where  pleasure  leads, 
but  ambition  must  prompt  and  judgment  direct.  Pro 
pretio  labor  est ;  nee  sunt  immunia  tanta. 


All  Doble  things  are  difficult  to  gain, 
And  without  labor,  none  can  them  attain. 


"  He  who  says,  Ptvamus,  mea  Lesbia,  atque  ame- 
mus,  will  never  be  a  scholar,  statesman,  nor  lawyer, 
whatever  else  he  may  be." 

"  To  the  young  lawyer  —  Have  you  more  acute- 
ness,  genius,  mind,  knowledge,  than  Parsons  ?  Yet 
who  was  more  indefatigable  in  his  profession,  and  in 
the  acquisition  of  knowledge  ?  If  I  must  choose  for 
my  son,  between  genius  or  great  talents,  and  indus- 
try, I  shall  not  hesitate  a  moment  in  my  choice  of 
the  last." 

Then,  in  reference  to  the  observation  that  to  some 
beings  the  bounty  of  nature  dispenses  with  the  usual 
steps  to  excellence,  and  instinctively  supplies  what 
the  most  painful  study  can  rarely  reach,  and  never 


LIFE     OF     JUDGE     SMITH.  183 

surpass,  he  says :  "  Nature  does  a  great  deal  of  mis- 
chief, in  these  occasional  freaks.  The  vanity  of 
thousands,  and  some  of  them  clodpoles,  whispers  to 
them,  '  thou  art  the  man,'  instead  of '  thou  art  the 
clodpole.'  " 

The  following  is  dated  29th  September,  1825. 
"  Great  things  may  be  accomplished  in  a  short  time 
where  the  disposition  is  good,  and  the  understanding 
apt.  You  must  shake  off  your  indolence  ;  begin  by 
making  yourself  master  of  your  profession,  and  as 
soon  as  possible  acquire  the  habit  of  attention.  Fur- 
nish your  mind,  enlarge  your  experience.  One  would 
think  the  genuine  passion  of  love  for  a  deserving 
woman  could  not  fail  to  whisper  this  advice,  and  pre- 
vail. He  must  be  far  gone  in  indolent  habits  who  is 
insensible  to  such  promptings." 

What  follows,  was  written  when  he  was  nearly 
eighty-two  years  old,  and  shows  the  feeling  with  which 
he  entered  upon  his  profession,  and  which  continued 
to  the  end,  so  true  is  it  that  the  most  useful  and  hon- 
orable lives  are  those  which  begin  with  the  highest 
purposes.  "  The  oath  of  a  knight,  never  to  sit  in  a 
place  where  injustice  shall  be  done,  without  righting  it 
to  the  utmost  of  his  power.  J.  S.  took  this  oath  in  early 
life,  and  hopes  he  has  in  some  good  measure  kept  it. 
Let  not  this  be  called  vaunting.  Remember  his  life 
is  about  closing,  and  he,  in  a  worldly  sense,  a  disin- 
terested witness."  In  a  passage,  written  nearly  ten 
years  before  this,  he  says :  "  I  don't  know  whether  I 
can  with  propriety  say  it,  but  I  can't  help  saying,  that 
I  was  endued  with  strong  feelings  of  abhorrence  to 
injustice,  and  of  resistance  to  oppression,  and  I  am 


184  LIFE     OF     JUDGE     SMITH. 

very  sure  that  motives  of  a  personal  nature  have 
very  seldom,  if  ever,  operated  to  prevent  the  expres- 
sion of  my  honest  and  independent  sentiments  and 
opinions.  In  these  things  I  am  afraid  that  I  cannot 
lay  claim  to  temperance  of  mind,  or  feelings  well  bal- 
anced." 

Judge  Smith's  charges  to  the  grand  jury,  which 
are  written  with  great  simplicity,  are  full  of  sound 
practical  instruction,  relating  to  the  nature  of  the 
laws,  the  way  in  which  they  were  to  be  administered, 
and  the  best  means  of  securing  and  advancing  the 
public  welfare. 

"  Laws,"  he  said  at  a  time  when  the  doctrine  was 
not  so  fully  admitted  as  it  now  is,  "  should  be  mild  ; 
where  punishments  are  mild,  shame  follows  the  finger 
of  the  law,  but  where  they  are  severe,  there  is  a  sym- 
pathy excited  for  the  offender,  and  he  is  viewed  as  a 
martyr  to  arbitrary  power.  Experience  has  abun- 
dantly proved,  that  mild  laws  are  more  efficacious 
than  severe  ones,  and  that  rigorous  punishments  tend 
rather  to  produce,  than  to  prevent  crimes.  Laws 
should  be  few  in  number.  Legislation  may  be  car- 
ried too  far.  Every  unnecessary  '  restraint  is  tyran- 
nical and  unjustifiable,  for  every  member  of  the  state 


1  "  A  land  may  groan  under  a  multitude  of  laws,  and  I  believe  ours 
does,  and  when  laws  grow  so  multiplied,  they  prove  oftener  snares,  than 
directions  and  security  for  the  people." — Lard  Shaftsbury. 

"  The  senate  of  the  Areopagus,  once  punished  a  senator  for  stifling  a 
little  bird  that  had  taken  refuge  in  his  bosom.  It  was  considered  a 
crime  against  humanity." —  Anacharsis. 

"  Corruptissima  Republiea,  plurimiE  leges."—  Tacitus  Annal.  III.  27. 

Judge  Smith  always  thought,  that  our  great  danger  lay  in  legislating 
too  much. 


LIFE     OF     JUDGE      SMITH.  185 

is  of  right  entitled  to  the  highest  possible  degree  of 
liberty  which  is  consistent  with  the  safety  and  well- 
being  of  the  whole."  But  however  excellent  the 
laws,  they  will  be  of  no  avail  unless  faithfully  exe- 
cuted. "The  certainty  of  punishment  is  more  effi- 
cacious to  prevent  crimes,  than  the  severity  of  it.1 
Among  some  it  has  been  a  favorite  opinion,  that  po- 
litical freedom  consists  in  an  exemption  from  the  re- 
straints of  law.  There  cannot  be  a  greater  error.  If 
the  laws  are  not  strictly  executed,  they  will  soon  be 
totally  disregarded  ;  and  where  the  laws  do  not  gov- 
ern, depend  upon  it,  the  will  of  a  despot  or  despots, 
(for  there  may  be  more  than  one  at  a  time,)  will  gov- 
ern. '  Amid  the  clashing  of  arms,  the  laws  are  si- 
lent ; '  the  converse  is  also  true,  that  when  laws  are 
silent,  arms  will  be  heard,  and  they  will  be  obeyed. 
Grand  juries  are  sometimes  deterred  from  presenting 
infractions  of  the  law,  by  personal  compassion  ;  but 
they  ought  to  remember,  even  if  they  forget  their 
oaths,  that  private  and  individual  compassion  is  often- 
times general  cruelty.  Let  there  be  abundant  clem- 
ency in  the  code  of  laws,  and  mercy  lodged  with  the 
supreme  power  in  the  state  ;  but  let  courts  and  juries 
faithfully  execute  the  laws,  which  is  the  trust  more 
especially  confided  to  them.  I  conclude,  gentlemen, 
with  repeating  my  belief  that  you  will  conscientiously 
discharge  the  duty  incumbent  on  you,  at  this  term, 
by  presenting  all  offences  that  may  come  to  your 


1  "  So  rigorous  were  the  forest  laws  of  France,  that  a  peasant,  charged 
with  having  killed  a  wild  boar,  alleged  as  an  alleviation  of  the  charge, 
that  he  thought  it  was  a  man."— 3  Bits.  Lee.  15. 
16* 


186  LIFE     OF     JUDGE     SMITH. 

knowledge,  truly  and  impartially.  Like  perfect  his- 
torians, you  will  not  fear  to  say  anything  that  is  true, 
nor  dare  to  say  anything  that  is  false  ;  but  will  so  act 
in  every  part  of  your  office,  that  the  innocent  may 
approach  this  tribunal  without  apprehension  of  dan- 
ger, and  the  guilty  leave  it  without  complaining  of 
injustice." 

In  respect  to  banishing  men,  as  a  punishment,  he 
says  :  "  We  are  more  given  to  importing,  than  to  ex- 
porting; and  it  is  easy  to  see  that  the  balance  of  this 
species  of  trade  is  very  much  against  us.  It  is  nat- 
ural, perhaps,  that  those  who  have  escaped  from  the 
jails  in  Europe,  should  be  fond  of  liberty  when  they 
come  here,  and  that  those  destitute  of  morality,  should 
endeavor  to  cover  their  deformities  with  the  mantle  of 
patriotism,  which,  like  charity,  covereth  a  multitude 
of  sins.  But  it  was  not  to  have  been  expected  that 
men,  whose  highest  claim  is  to  our  sufferance,  should 
venture  to  interfere  in  our  councils,  and  dictate  to  us 
HI  the  management  of  our  affairs." 

The  following  paragraph,  from  the  charge  delivered 
in  the  spring  of  1804,  is  marked  "omitted  in  the  de- 
livery "  :  "  False  and  malicious  writings  against  men 
in  office,  deserve  the  reprobation  of  all  good  men, 
and  the  severest  chastisement  of  the  law.  Justice, 
like  a  guardian  angel,  should  watch  over  the  pillows 
of  the  men  whose  lives  are  devoted  to  the  public  ser- 
vice. Every  blow  levelled  at  their  reputations  and 
characters,  if  unjustly  inflicted,  is,  in  its  consequences, 
injurious  to  the  public.  The  character  and  welfare  of 
the  community,  is  intimately  blended  with  the  charac- 
ter of  their  rulers,  and  it  is  impossible  unjustly  to  de- 


LIFE    OF      JUDGE     SMITH.  187 

fame  the  one,  without  doing  essential  injury  to  the 
other." 

During  the  first  two  or  three  years  that  Judge  Smith 
was  on  the  bench,  there  was  no  crime  to  which  he  so 
constantly  and  earnestly  called  the  attention  of  the 
grand  jury,  as  forgery.  It  appeared,  from  the  evi- 
dence in  different  cases,  that  gangs  of  counterfeiters 
made  their  head-quarters  in  New  Hampshire,  in  con- 
sequence of  the  great  mildness  of  the  New  Hampshire 
laws  towards  their  offence.  He  often,  and  in  the 
strongest  language,  speaks  of  perjury,  "  the  attack  on 
religion  and  law,  in  the  very  point  of  their  union." 
"  So  atrocious,"  he  says,  "  was  this  offence  viewed, 
by  the  pious  and  moral  settlers  of  New  England,  that 
in  their  first  code  of  laws  perjury  was  subjected  to 
capital  punishment."  "  It  is  a  melancholy  thing,  that 
judges  are  often  called  upon  to  state  to  the  jury,  that 
a  fact  is  not  proved,  because  it  is  sworn  to.  We  can- 
not help  seeing,  in  men  of  some  standing  in  society,  a 
disposition  to  evade  the  truth,  to  practise  cunning  and 
ingenuity  ;  as  if  there  were  as  much  merit  in  gaining 
a  cause  by  ingenious  swearing,  as  by  ingenious  argu- 
ment." 

At  the  time  Judge  Smith  came  to  the  bench,  per- 
jury was  practised  to  a  most  alarming  extent.  There 
were  men  of  apparent  respectability,  who  made  it 
their  business  to  be  witnesses,  and  to  train  others  to 
testify  as  circumstances  might  require  ;  so  that  it  came 
to  be  understood  that  any  one,  unscrupulous  enough 
to  adopt  the  means,  might  procure  for  any  case  such 
testimony  as  he  wished.  In  order  to  put  down  this 
alarming  evil,  the  chief  justice,  in  conformity  with 


188  LIFE     OF     JUDGE      SMITH. 

what  he  believed  the  spirit  of  the  English  law,  allow- 
ed the  counsel,  provided  they  were  willing  to  take 
the  risk,  an  unusual  degree  of  severity  in  cross-exam- 
ining witnesses.  There  was  one  man  in  particular, 
who  attended  the  courts  almost  as  regularly  as  the 
judges  ;  a  man  of  some  property  and  of  considerable 
talent  and  influence,  whom  it  was  exceedingly  difficult 
to  catch,  but  who,  at  last,  after  a  cross-examination  of 
many  hours,  was  so  completely  broken  down  and  ex- 
posed, that  his  testimony  afterwards  was  of  no  value. 
Such  a  practice  at  the  bar  must  have  had  its  disad- 
vantages, but  in  its  effect  was  undoubtedly  favorable 
to  the  administration  of  justice.  Cross-examining  is, 
however,  a  weapon,  which,  unless  used  with  great  skill 
and  caution,  is  likely  to  fly  back  and  wound  him  who 
uses  it,  more  than  his  antagonist. 

In  the  charge  delivered  in  the  fall  of  1807,  after 
speaking  of  the  little  attention  bestowed  upon  the  ju- 
diciary, compared  with  what  is  given  to  the  other 
branches  of  government,  he  enters  more  particularly 
into  an  account  of  the  arduous  and  painful  duties  of 
a  judge,  and  adds :  "  To  balance  all  these  evils,  and 
many  besides,  which  every  judge  could  add  to  the 
list,  he  is  allowed  to  enjoy,  pure  and  unmixed  with  the 
trash  of  this  world,  all  the  satisfaction  which  flows  from 
a  conscientious  discharge  of  duty.  This  is,  indeed, 
the  most  precious  reward  for  labor  ;  and  society  will 
generally  take  care  that  it  shall  be  the  only  reward 
of  a  judge. 

"  The  institution  of  juries  is,  however,  favorable  to 
judges,  as  well  as  to  the  administration  of  justice. 
Forty  or  fifty  persons  are  selected,  at  every  term,  from 


LIFE    OF    JUDGE     SMITH.  189 

the  most  respectable  inhabitants  of  the  vicinity,  to  at- 
tend the  court  while  employed  in  the  exercise  of  Us 
judicial  functions.  If  they  were  mere  spectators  of 
what  passes  in  court,  they  would  be  of  great  utility. 
The  presence  of  so  many  respectable  persons  must 
have  a  beneficial  influence  over  witnesses,  and  I  have 
no  doubt  has  been  the  means  of  preventing  much  per- 
jury. The  very  countenance  of  good  men  affords  no 
small  support  to  a  poor  man  struggling  to  obtain  jus- 
tice, against  an  artful  and  powerful  antagonist,  while, 
at  the  same  time,  it  has  some  tendency  to  weaken  the 
strength  of  the  boldest  transgressor.  To  the  court, 
the  presence  of  these  respectable  men  is  no  less  ben- 
eficial. If  the  judges  are  what  the  constitution  re- 
quires them  to  be,  skilful  in  discerning  the  path  of 
duty,  diligent,  upright  and  impartial  in  dispensing 
justice,  these  men  will  be  witnesses  for  them,  and  their 
respectable  and  impartial  testimony,  in  a  tolerable  state 
of  society,  will,  it  may  be  hoped,  far  outweigh  the  mis- 
representations of  those  who  revile  and  hate  the  ad- 
ministration of  justice,  because  they  are  made  to  feel 
the  just  effects  of  their  folly  and  wickedness. 

"  But  it  is  still  better,  when  a  considerable  number 
of  persons  from  the  various  parts  of  the  country,  are 
occasionally  called  to  take  a  part  in  the  administration 
of  justice,  civil  and  criminal,  to  bear  a  portion  of  that 
burthen,  which  will  prove  too  heavy  for  any  man  to 
sustain  many  years.  It  is  said  that  the  safety  of  every 
free  government  requires  that  the  virtuous  part  of  the 
community  should  enjoy  a  certain  weight  in  the  ad- 
ministration. Is  not  this  applicable  to  the  judiciary  ? 
Without  this  popular  intermixture,  judicial  decisions 


190  LIFE    OF    JUDGE     SMITH. 

would  hardly  give  satisfaction ;  and  of  what  utility 
would  the  wisest  and  most  correct  decisions  be,  if  the 
majority  of  the  citizens  were  dissatisfied  with  them  ? 
In  short,  gentlemen,  I  verily  believe,  that  the  wisdom 
of  ages  has  never  produced,  and  that  the  wit  of  man 
never  will  produce,  anything  so  admirable,  as  the 
institution  of  juries,  grand  and  petit,  in  the  adminis- 
tration of  justice.  But,  at  the  same  time,  it  cannot 
be  denied,  that  even  this  mode  of  inquiry,  excellent 
and  useful  as  it  is,  like  everything  of  human  inven- 
tion, is  not  entirely  free  from  defects.  We  can  even 
conceive  of  its  existing  in  such  a  state,  as  to  be  the 
worst  tribunal  on  earth.  The  best  things,  when  de- 
generate and  corrupt,  become  the  worst.  And  this 
would  be  true  of  juries,  if  not  composed  of  suitable 
and  qualified  persons  ;  if  they  should  overleap  their 
proper  bounds,  and  if  they  should  become  negligent 
or  corrupt,  or  even  suspected  of  gross  partiality  in 
the  discharge  of  their  functions. 

"  In  some  parts  of  our  country,  (and  in  early  times 
in  New  England,)  it  has  been  deemed  proper  for  grand 
juries  to  notice,  in  their  presentments,  the  operations 
of  government,  and  to  expose,  at  least  to  inspection, 
public  men  and  public  measures  ;  to  suggest  public 
improvements,  and  the  modes  of  removing  public  in- 
conveniences. These  presentments  may  sometimes 
have  had  a  salutary  effect,  but  I  have  no  hesitation  in 
saying,  that  the  effect  will  generally  be  pernicious. 
If  they  sometimes  aid  a  good  government,  they  will 
at  others,  perhaps,  thwart  the  best  measures  of  the 
best  government.  If  they  sometimes  denounce  bad 
men,  what  security  have  we  that  they  will  always  spare 


LIFE    OF    JUDGE    SMITH.  191 

the  good  ?  Their  means  of  getting  information  are 
too  limited  to  speak  decisively  on  such  subjects,  and 
they  will  oftener  express  the  sentiments  and  feelings  of 
the  party  to  which  they  belong,  than  the  sentiments  or 
opinions  of  the  public  at  large.  It  is,  besides,  introduc- 
ing politics  into  courts  of  justice,  an  evil  which  cannot 
be  too  carefully  guarded  against. 

"  With  regard  to  the  manner  in  which  you  ought  to 
discharge  your  duties,  it  is  not  necessary  for  me  to  say 
much  ;  your  oath,  which  is  the  commission  under 
which  you  act,  is  a  good  summary  of  your  duty.  But 
it  may  be  useful,  perhaps,  to  mention  some  of  the  temp- 
tations to  which  juries  are  most  exposed,  and  the  points 
on  which  they  are  most  likely  to  fail  of  performing 
their  duty.  A  jury,  I  speak  of  traverse  as  well  as  grand 
juries,  is  a  popular  body,  and  as  such,  must  be  expos- 
ed to  suspicion  of  partiality,  arising  from  local  preju- 
dices, popular  clamor,  and  party  spirit.  The  latter  is 
not  peculiar  to  these  times,  or  our  country.  Wherever 
there  is  freedom,  there  party  spirit  will  be  found  to 
exist,  and  where  juries  are  summoned  from  the  neigh- 
borhood, they  will,  they  must  bring  with  them  into 
court,  much  of  the  sentiments  and  feelings  of  the 
people  from  whom  they  are  selected.  It  requires  no 
small  share  of  virtue  and  vigor  of  mind,  to  rise  above 
local  prejudices  and  party  spirit,  to  decide  justly  be- 
tween a  neighbor,  and  a  stranger  —  one  who  has  po- 
pularity on  his  side,  and  one  who  has  the  misfortune 
to  be  obnoxious.  To  be  perfectly  cool,  when  a  cry 
has  been  raised,  and  the  neighborhood  is  in  a  flame, 
falls  to  the  lot  of  a  few  only.  And,  even  if  we  should 
be  happy  enough  to  rise  above  all  obstacles,  and  be 


192  LIFE    OF    JUDGE    SMITH. 

able  conscientiously  to  discharge  our  duty,  we  can 
scarcely  hope  to  escape  suspicion. 

"  A  few  centuries  ago,  when  sheriffs  and  attorneys 
were  less  correct  in  their  morals  than  at  this  day,  and 
when  the  sheriff  returned  the  juries,  it  was  a  common 
article  in  an  attorney's  bill,  to  charge  a  certain  sum 
for  procuring  the  friendship  of  the  sheriff,  in  the  choice 
and  return  of  jurors.  Embracery  of  jurors,  or  the  at- 
tempt corruptly  to  influence  them  to  one  side,  was  an 
offence  often  committed,  and  severely  punished,  and 
it  is  an  offence  still.  It  is,  perhaps,  natural  enough, 
as  human  nature  is,  that  parties,  and  especially  those 
who  have  a  bad  cause,  should  endeavor  to  secure,  by 
undue  means,  the  favor  of  the  jury.  When  jurors  are 
applied  to  by  parties,  in  this  way,  they  should  always 
understand  that  the  party  applying  thinks  as  meanly 
of  his  own  cause  as  he  does  of  the  uprightness,  deli- 
cacy, and  honor  of  the  juror.  To  so  great  a  height 
had  these  evils  arisen  at  particular  times  and  places, 
as  almost  to  justify  what  was  said  by  a  good  bishop, 
of  the  London  juries,  who  seem  at  all  times  to  have 
been  peculiarly  exposed  to  this  external  influence,  — 
1  that  they  were  so  prejudiced  and  partial,  that  they 
would  find  Abel  guilty  of  the  murder  of  Cain.' 

"  I  have  had  occasion  to  observe,  during  my  at- 
tendance on  courts,  that  popular  causes  are  generally 
decided  wrong,  and  the  reason  is,  because  law  and 
evidence  are  not  alone  regarded.  When  a  cause  has 
been  repeatedly  tried,  and  become  a  subject  of  con- 
versation, it  is  difficult  to  obtain  a  correct  decision. 
Few,  except  court  and  jury,  have  the  means  of  hear- 
ing the  whole  ;  many  are  not  capable  of  judging  in  a 


LIFE    OF    JUDGE    SMITH.  193 

complicated  cause  which  they  have  fully  heard ;  yet 
all  undertake  to  judge.  No  man  objects  to  his  own 
competency,  or  withholds  his  opinion.  It  requires  a 
degree  of  firmness  and  manly  independence,  not  very 
common,  to  resist  what  appears  to  be  the  general 
opinion  of  others." 

"  I  have  dwelt  longer  than  I  intended  on  the  dan- 
ger of  partiality  in  jurors.  I  hope  what  I  have  said 
will  be  supposed  applicable  chiefly  to  former  times 
and  other  places.  I  hope  the  picture  I  have  sketched 
will  bear  little  resemblance  to  anything  which  lately 
has  been,  or  speedily  will  be,  seen  in  this  state.  But 
there  is  a  great  evil  in  jury  trial,  which  is  of  modern 
growth,  and  in  a  great  measure  peculiar  to  ourselves ; 
I  mean  the  frequent  instances  in  which  juries  of  trial 
disagree.  It  is  well  known  to  you,  gentlemen,  that 
when  the  grand  jury  is  composed  of  twelve  only,  the 
law  requires  that  they  should  be  unanimous,  and 
when  the  number  is  greater,  there  must  be  twelve,  at 
least,  agreed  to  find  a  bill,  and  that  unanimity  is  al- 
ways required  in  the  traverse  jury.  It  would  be  a 
matter  of  curiosity,  for  which  we  have  no  leisure  at 
this  time,  to  trace  out  the  origin  of  this  most  singular 
institution  —  the  principle  of  unanimity.  It  was  not 
at  once  adopted,  either  in  England  or  in  this  country, 
and  it  does  not  prevail  in  Scotland  to  this  day.  But 
it  is  sufficient  for  our  present  purpose,  that  it  is  now 
the  law  of  this  state.  In  criminal  prosecutions  this 
principle  is  favorable  to  the  accused.  If  the  offence 
is  not  proved  beyond  all  reasonable  doubts  in  the 
mind  of  the  most  scrupulous  juror,  it  operates  as  an 
acquittal ;  but  in  civil  suits  it  has  lately,  in  practice, 
17 


194  LIFE    OF    JUDGE    SMITH. 

occasioned  delay,  a  great  evil  in  the  administration 
of  justice  ;  so  true  is  the  Eastern  maxim,  in  many 
cases,  '  that  speedy  injustice  is  better  than  tardy  jus- 
tice.' The  modern  method  of  trying  causes,  of  itself 
occasions  great  delay.  The  length  of  the  pleadings, 
arguments  of  counsel,  &c.,  sometimes  necessarily, 
and  sometimes  unnecessarily,  protract  the  trial  to 
a  most  unreasonable  length.  A  late  trial  in  this 
country,  has  occupied  more  than  a  month.1  It  is  but 
a  few  years  since  an  adjournment  was  first  permitted 
in  the  trial  of  a  cause.  The  disagreement  of  juries 
adds  greatly  to  the  evil.  In  fifty  trials  within  the  last 
five  years,  the  jury  have  not  agreed.  Those  have 
generally  been  causes  where  the  expense  of  a  trial  has 
been  considerable  ;  to  the  parties  concerned,  it  has 
amounted  at  least  to  five  thousand  dollars  ;  and  to 
the  other  parties  who  have  causes  in  court,  and  to  the 
public,  the  extra  expense  has  been  still  greater.  I 
speak  much  within  bounds,  when  I  say  the  whole 
expense  has  been  a  greater  sum  than  the  whole  judi- 
ciary department  has  cost  the  state  during  the  same 
period.  Most  of  the  causes  where  this  disagreement 
took  place,  were  those  where  local  prejudices  and 
public  opinion  have  been  suspected  of  having  had  an 
undue  influence.  Real  difficulty  in  the  question  to 
be  tried  has  seldom  prevented  a  verdict.  Some  of 
the  causes  to  which  I  allude,  have  been  tried  five  or 
six  times.  With  the  court,  I  trust,  there  has  been  no 
cause  for  disagreement  of  the  jury.  It  has  always 
been  their  uniform  endeavor  to  declare  the  law,  to 

»  The  trial  of  A.  Burr,  in  the  circuit  court  of  Virginia. 


LIFE    OF    JUDGE    SMITH.  195 

make  it  intelligible  to  the  jury,  and  to  assist  them  in 
judging  of  the  facts.  It  is  remarkable  that  the  greater 
number  of  the  causes  where  the  jury  have  not  agreed, 
have  been  such  as  might  have  been  reviewed,  of 
course.  Both  parties",  therefore,  would  have  been 
gainers  by  losing  the  cause  when  the  jury  had  so  dis- 
agreed. There  have  been  instances,  within  my  know- 
ledge, where  the  party  finally  prevailing,  after  re- 
peated trials,  in  which  there  has  been  no  verdict, 
would  have  been  a  gainer  by  losing  the  cause  at  the 
first  trial,  supposing  that  trial  to  be  final." 

The  great  subject  however,  beyond  all  others,  on 
which  these  charges,  from  beginning  to  end,  insist,  is 
the  importance  of  public  schools,  and  of  moral  and 
religious  instruction.  "  The  race  of  man,"  says 
Judge  Smith,  in  his  first  charge,  "  cannot  be  happy 
without  virtue,  nor  actively  virtuous  without  freedom, 
nor  securely  free  without  rational  knowledge  and 
education.  Everything  cannot  be  expected  from 
mere  forms  of  civil  government,  though  one  form 
may  be,  and  undoubtedly  is,  preferable  to  others. 
Great  expectations  have  been  raised  of  an  end  being 
put  to  wars,  and  of  brotherly  love  and  universal  good- 
will prevailing  in  the  earth,  by  the  mere  exchange  of 
monarchical  forms  of  government  for  republican  and 
democratic,  and  from  the  illuminations  which  phi- 
losophy is  supposed  to  be  shedding  on  this  age  of 
reason.  But  it  has  been  found,  on  experiment,  (the 
surest  touchstone  of  political  opinions,)  that  the  state 
of  society  and  the  condition  of  mankind  have  not 
been  much  improved  by  political  revolutions.  Like 
earthquakes  and  tornadoes  in  the  natural  world,  they 


196  LIFE    OF    JUDGE    SMITH. 

serve  to  convulse  society,  and  too  often  overwhelm 
in  their  ruins  the  most  virtuous  portion  of  the  com- 
munity. They  do  not  make  good  men  better,  but 
bad  men  worse.  It  is  worthy  of  remark,  that  those 
who  have  been  predicting  this  political  millennium, 
this  peaceable  state  of  society,  which  is  to  flow  from 
mere  forms  of  civil  government,  have  been,  in  fact, 
the  greatest  disturbers  of  mankind  ;  and  the  boasted 
philosophy  of  the  present  day  has  been  found,  on 
experience,  better  calculated  to  weaken  the  bonds  of 
society,  than  to  unite  mankind  in  brotherly  love  and 
affection.  The  world  is  not  to  be  regenerated  by 
political  revolutions,  nor  by  the  dogmas  of  infidel 
philosophy. 

"  The  sum  of  the  whole  is,  that  while  we  faithfully 
discharge  our  several  duties  of  jurors  and  judges,  in 
impartially  executing  the  laws,  we  must  cherish  our 
religious  institutions.  Disregarding  all  trifling  distinc- 
tions among  professors  of  the  same  faith,  (for  such  will 
always  exist,)  we  mus^  cling  to  the  Christian  religion, 
as  our  only  sure  and  steadfast  anchor  of  hope.  It  is 
peculiarly  our  duty  to  do  so  at  this  time.  We  live  in 
an  age  fond  of  liberty,  but  impatient  of  those  salutary 
restraints  of  law  which  alone  make  liberty  either  last- 
ing or  valuable.  We  have  a  constitution  of  govern- 
ment, the  best  formed  to  insure  peace  and  happiness 
to  the  subjects  of  it.  But  governments,  like  the  indi- 
viduals of  which  they  are  composed,  have  their  imper- 
fections and  defects.  They  have  all,  hitherto,  proved 
mortal.  Those  formed  on  the  principles  of  freedom 
and  justice,  have  not  been  hitherto  exempted  from  the 
general  destruction.  They  have  perished,  like  the 


LIFE    OF    JUDGE    SMITH.  197 

rest.  Indeed,  we  have  .the  mortification  to  learn  from 
history,  that  the  freest  governments  have  been  of  the 
shortest  duration.  Like  some  of  the  fairest  flowers, 
they  are  the  most  easily  destroyed  by  the  rude  blasts 
of  popular  passions.  Let  ours  be  built  on  the  solid 
foundations  of  religion  and  morality,  and  when  the 
rains  descend,  and  the  floods  come,  it  shall  remain  un- 
moved, because  founded  on  a  rock." 

He  urges  again  and  again,  the  necessity  of  enforc- 
ing upon  towns  the  laws  requiring  them  to  make  pro- 
vision for  public  schools.  And,  notwithstanding  all 
that  has  been  done,  this  is  a  subject  on  which,  as  mem- 
bers of  a  free  community,  our  citizens  now,  especially 
some  among  the  rich  and  learned,  do  not  bestow  the 
attention  which  its  importance  demands.  They  for- 
get that  the  security  of  property,  and  their  position  in 
the  midst  of  a  peaceable  community,  must  depend  on 
the  education  of  the  masses,  whom,  with  a  contempt, 
which  argues  as  little  for  the  soundness  of  their  minds 
as  for  the  kindness  of  their  hearts,  they  would  shut 
out  from  all  but  the  lowest  branches  of  knowledge. 
Judge  Smith  looked  upon  the  subject  with  the  eyes 
of  an  enlightened  wisdom. 

In  his  charge  for  the  spring  circuit  of  1807,  he  says  : 
"  It  is  hardly  to  be  expected  that  private  individuals, 
in  towns  which  are  negligent,  will  bring  forward  pro- 
secutions. Some  of  the  rich  are  so  sordid  as  to  think 
that  the  money  laid  out  in  educating  the  children  of 
the  poor,  is  money  ill  bestowed.  The  ignorant  are 
doubtless  ignorant  of  what  they,  as  members  of  the 
community  lose,  by  the  neglect  of  maintaining  schools. 
It  is  not  even  to  be  expected  that  the  youth  for  whose 
17* 


198  LIFE    OF    JUDGE    SMITH. 

immediate  benefit  these  wholesome  regulations  are 
framed,  can  be  fully  sensible  of  how  much  importance 
it  is  to  the  community  at  large,  that  they  should  be 
early  instructed  in  those  principles  of  good  manners, 
good  morals,  and  useful  knowledge,  which  are  to  be 
acquired  in  every  well-regulated  school.  With  what- 
ever disdain  the  pride  of  learning  may  look  down  on 
the  scanty  information  which  town  schools  can  con- 
vey, men  of  benevolence  and  good  sense,  and  I  may 
add,  all  true  republicans,  will  never  consider  any  de- 
gree of  knowledge  as  trifling,  which  tends  to  civilize 
and  humanize  a  nation,  and  to  fit  it  for  the  enjoyment 
of  free  government.  Where  the  people  are  ignorant, 
the  government  must  be  despotic  ;  and  it  is  certainly 
true  that  the  welfare  of  a  nation  depends  much  less 
on  the  refined  wisdom  of  the  few,  than  on  the  man- 
ners and  character  of  the  many.  This  is  particularly 
true  in  republics,  for  we  have  no  security  that  the 
wise  few  will  have  any  influence  at  all  with  the  igno- 
rant many." 

Religion  and  virtue  he  regards,  everywhere,  as  the 
pilars  of  our  govern  ment  ;  and  omits  no  opportunity 
of  recommending  them,  and  whatever  may  conduce 
to  them.  "  My  design,  gentlemen,  in  making  these 
observations,  is  to  impress  on  your  minds,  the  import- 
ance of  cherishing  our  religious,  moral,  and  literary 
institutions.  In  your  office  of  grand  jurors,  you  are 
censors  of  the  public  morals  and  manners.  In  that 
character,  in  common  with  all  in  authority,  it  is  your 
indispensable  duty  to  lead  the  way  to  every  design  to 
meliorate  and  improve  the  state  of  society.  It  is  an 
obvious  truth,  that  example  is  more  seductive,  more 


LIFE    OF    JUDGE     SMITH.  199 

powerful  than  precept.  It  will,  perhaps,  be  too  much, 
after  using  all  the  means  in  our  power,  to  expect  that 
we  shall  be  able  to  reduce  the  tumultuous  activity  of 
mankind  into  absolute  regularity,  but  something  may 
be  done,  and  good  actions  and  good  sentiments  will 
not  be  totally  lost ;  if  they  do  not  benefit  others,  they 
will  benefit  ourselves.  We  may  at  least  hope  that 
they  will  in  some  degree  lessen  the  necessity  of  in- 
flicting punishment  on  our  fellow-creatures,  and  that 
they  will  have  some  tendency  to  secure  to  us  the  bles- 
sings of  liberty  and  a  republican  form  of  government, 
and  enable  us  to  transmit  both  to  our  posterity." 

"  A  society  which  has  no  other  method  of  promot- 
ing virtue,  but  by  punishing  offences  when  committed, 
will  have  a  great  many  punishments  to  inflict.  The 
gallows  will  be  crowded  with  victims,  and  the  execu- 
tioner's axe  constantly  wet  with  blood.  The  great  ob- 
ject of  government,  in  all  their  institutions,  should  be 
to  prevent  the  commission  of  crimes.  Our  institutions 
of  a  literary,  moral,  and  religious  nature,  are  admira- 
bly calculated  to  produce  these  effects.  But  they 
must  not  be  neglected,  they  must  be  carefully  and  as- 
siduously cultivated  and  cherished.  An  experiment 
has  been  lately  made  on  the  great  theatre  of  the  world, 
of  governing  mankind,  under  a  republican  form  of 
government,  without  the  aid  of  religion  ;  and  how  did 
this  experiment  succeed  ?  Just  as  all  such  experi- 
ments will  ever  succeed,  till  the  nature  of  man  under- 
goes a  radical  change.  Republicanism  is  an  excellent 
form  of  government,  but  it  cannot  supply  the  place  of 
religion  and  morality.  Indeed,  it  requires  a  double 
portion  of  both.  A  good  monarch  may  govern  well 


200  LIFE    OF    JUDGE    SMITH. 

a  vicious  people ;  but  a  vicious  people  under  the  re- 
publican form,  must  have  bad  governors.  It  is  to  be 
presumed  that  they  will  choose  to  have  laws  and  an 
administration  like  themselves. 

"  Virtue  is  the  foundation  of  republics  ;  it  is  the  cor- 
ner-stone. We  are  now,  as  far  as  I  know,  the  only 
people  on  earth  endeavoring  to  maintain  a  government 
which,  in  every  department  of  it,  emanates  from  the 
people,  which,  in  every  feature  of  it,  is  democratic. 
It  is  a  solemn  consideration !  And  I  wish  to  leave 
it  with  my  fellow-citizens,  as  my  fixed  and  decided 
opinion,  that  the  experiment  we  are  now  making  will 
turn  out  like  all  others  that  have  been  made,  if  we  do 
not  cultivate  and  improve  our  minds  and  social  affec- 
tions by  education  and  learning,  and  our  morals,  by 
the  pure  principles  of  sound  morality,  and  above  all, 
by  the  mild  and  gentle  influence  of  that  '  religion 
which  cometh  down  from  above,  which  is  pure,  peace- 
able, and  full  of  good  fruits.'  " 

What  follows  is  the  close  of  the  last  charge  that 
he  gave  to  a  grand  jury,  before  retiring  from  the 
bench,  in  1809:  "  From  this  brief  review  of  our 
criminal  code,  gentlemen,  I  think  I  am  warranted  in 
saying,  that  it  ought  to  be  carried  into  strict  execu- 
tion. For  it  is  so  agreeable  to  reason,  that  even  those 
who  suffer  by  it,  cannot  charge  it  with  injustice  or 
cruelty  ;  so  adapted  to  the  common  good,  as  to  suffer 
no  folly  to  go  unpunished  ;  and  yet  so  tender  of  the 
infirmities  of  human  nature,  as  never  to  refuse  an 
indulgence,  where  the  safety  of  the  public  will  bear  it. 
It  gives  the  government  no  power  but  of  doing  good, 
and  restrains  the  people  of  no  liberty  but  of  doing 


LIFE    OF   JUDGE    SMITH.  201 

evil.  This  code  of  laws,  and  your  office,  gentlemen, 
are  the  means  employed  by  society  to  compel  men 
to  become  orderly  and  peaceable  members  of  the 
community.  They  are  an  address  to  the  fears  of 
men,  when  better  principles  have  lost  their  influence 
upon  the  heart  and  conscience.  But  it  is  always 
to  be  remembered,  gentlemen,  that  punishments  by 
which  innocence  is  protected,  do  not  give  habits  of 
morality.  They  are  inflicted  to  put  a  stop  to  the 
consequences  of  vice,  but  they  do  not  remove  the 
cause.  If  all,  or  even  a  majority  of  the  people  of  a 
state  were  ill-disposed,  the  infliction  of  punishment 
would  aggravate,  instead  of  curing  the  distemper. 
The  sight  of  a  jail,  or  even  of  a  malefactor  on  the 
gallows,  will  not  make  industrious  a  man  who  is 
inured  to  idleness,  or  give  sentiments  of  honor  to  one 
practised  in  dishonesty.  There  have  been  many 
thefts  committed  under  the  gallows,  during  the  time 
of  a  public  execution.  A  code  of  penal  laws,  how- 
ever excellent,  is  by  no  means  a  power  adapted  to 
extirpate  the  depravity  which  pervades  a  great  por- 
tion of  mankind.  It  corrects  the  distemper,  but  does 
not  eradicate  it.  This  can  only  be  accomplished  by 
the  Christian  religion,  which  is  a  part  of  the  common 
law  of  this  state,  and  by  far  the  noblest  part.  Its 
excellency  and  utility  are  expressly  recognized  in  our 
constitution.  Christianity  is,  indeed,  the  most  bene- 
volent system  that  ever  appeared  among  men.  It 
breathes  love  and  charity  in  every  precept.  It  has 
an  obvious  tendency  to  check  and  restrain  every  ma- 
levolent and  irregular  passion,  to  strengthen  and 
establish  every  benevolent,  every  virtuous  principle, 


202  LIFE    Or   JUDGE    SMITH. 

to  exalt  and  perfect  our  reasonable  natures,  and  to 
promote  peace  and  good-will  among  men.  Its  influ- 
ence on  the  welfare  of  society  has  never  been 
doubted  by  any  wise  man  or  able  statesman.  The 
father  of  his  country  has  said,  and  said  truly,  that  it 
is  the  greatest  pillar  of  human  happiness,  and  the 
firmest  prop  of  the  duties  of  men  and  citizens.  In 
short,  religion  is  as  well  calculated  to  promote  happi- 
ness in  this  world,  as  in  the  next.  The  pillars  of 
government  —  of  a  free  government,  must  be  laid  on 
the  fundamental  principles  of  religion,  or  the  fabric 
will  never  stand.  It  will  degenerate  into  despotism, 
on  the  one  hand,  or  anarchy  and  licentiousness  on 
the  other.  It  follows,  that  our  institutions '  of  reli- 
gion, learning,  and  discipline,  must  be  fostered  and 
encouraged  by  the  legislature,  by  courts  of  justice, 
and  by  all  good  citizens,  and  especially  by  those  in 
office,  by  those  who  have  influence  in  society,  and 
by  none  more  than  by  the  respectable  men  who  com- 
pose the  grand  juries  ;  who,  while  they  labor  to 
bring  to  condign  punishment  offenders  against  the 
law,  will  with  pleasure  promote  every  institution 
which  has  a  tendency  to  prevent  the  commission  of 
crimes.  Virtue  and  industry  are  articles  that  can  be 
manufactured,  and  the  stock  increased,  at  pleasure. 
It  is  surely  better  to  reform  mankind,  by  giving  them 
good  dispositions,  than  to  punish  them  for  having 


1  "  With  respect  to  the  Sabbath,  in  particular,  it  has  been  said,  and,  I 
believe  justly,  that  it  is  an  institution  of  great  political  consequence, 
if  it  were  nothing  more,  and  that  there  is  a  very  exact  proportion  be- 
tween the  vices  and  immoralities  of  a  nation  and  its  relaxation  or  indif- 
ierence  in  the  observance  of  the  Sabbath." 


LIFE    OF   JUDGE    SMITH.  203 

bad  ;  to  make  them  good  citizens,  and  useful  members 
of  society,  rather  than  shut  them  up  in  prisons,  or 
take  away  their  lives." 

I  am  aware  that  in  these  quotations  there  is  little 
which  can  now  strike  the  reader  as  new.  They 
were  written  forty  years  ago,  and  the  progress  of 
opinion,  imperceptible  in  the  daily  passage  of  time, 
appears  distinctly  marked,  when  examined  after  an 
interval  of  so  many  years.  The  leading  character- 
istic of  these  charges  is  their  sound  practical  wisdom. 
I  doubt  whether  they  contain  a  single  suggestion  of 
any  moment,  which  experience  has  not  confirmed  ; 
and  this  will  be  deemed  no  mean  praise,  when  we 
remember  that  they  are  not  made  up  of  solemn  tru- 
isms, but  that  many  of  their  assertions  were  in  ad- 
vance of  their  time,  and,  when  first  uttered,  startled 
men  by  their  novelty  and  boldness.1  Much  of  what 
they  contain  relates  to  temporary  matters,  and  its 
value  has  passed  away  with  the  abuses  they  were  in- 
tended to  correct ;  but  much  still  remains,  as  fresh, 
as  important,  and  as  worthy  to  be  repeated  and  en- 
forced, as  when  the  government  was  first  established. 

I  have  now  said  the  little  I  am  able  to  say  of 
Judge  Smith's  conduct  upon  the  bench,  endeavoring 
to  show  how  his  influence  was  exerted,  rather  than 


1  The  following  passage,  for  instance,  produced,  I  am  told,  a  strong 
sensation  among  the  religious  part  of  the  community,  as  setting  aside 
what  they  had  been  accustomed  to  consider  the  fundamental  reason  for 
the  laws  against  profane  swearing,  blasphemy,  and  the  profanation  of 
the  sabbath.  "  Society  does  not  punish  these  merely,  if  at  all,  be- 
cause they  are  offences  against  the  Deity,  for  he  can,  and  assuredly 
•will,  avenge  himself  of  his  enemies,  but  because  they  are  of  evil 
example,  and  attended  with  pernicious  effects  on  society  itself." 


204  LIFE    OF    JUDGE    SMITH. 

what  he  actually  accomplished.  His  judicial  deci- 
sions, the  appropriate  monument  of  his  learning,  in- 
dustry, and  intellectual  power,  having  been  prepared 
for  a  generation  that  is  passing  away,  and  not  having 
been  published  so  as  to  take  their  place  among  the 
authorities  of  the  time  and  perpetuate  themselves  in 
other  decisions  growing  out  of  them,  could  not  now  give 
a  fair  idea  either  of  what  he  was,  or  what  he  did,  as  a 
judge.  His  works,  like  the  last  year's  dew  and  rain, 
have  gone  into  other  forms,  and  will  continue  to  act 
where  their  influence  is  least  recognized,  in  the  more 
healthy  tone  and  structure  of  society.  It  is  a  blessed 
thought,  that  the  labors  of  the  wise  and  true  are  not 
confined  in  their  results  to  what  the  eye  may  see, 
but  by  the  unseen  hand  of  Providence  are  led  on  to 
issues  of  a  vastly  purer  and  more  extended  good. 
Little  can  the  ocean  know  of  the  distant  fountains 
from  which  its  waters  are  supplied,  and  little  can  the 
fountains  tell  either  what  blessings  their  pure  streams 
may  dispense  in  their  progress,  or  what  an  ocean  they 
may  fill. 

In  one  of  Judge  Smith's  latest  writings  he  has 
given,  in  a  half  imaginary  sketch,  his  idea  of  a  judge. 
"  I  have  often,"  he  says,  "  indulged  my  imagination 
in  drawing  a  picture  of  Washington  on  the  bench  of 
justice,  supposing  opportunity  and  inclination  had 
allowed  him  to  acquire  a  competent  knowledge  of 
the  law.  Everything  in  and  about  him  was  judicial. 
A  fine,  graceful,  and  manly  person  —  his  manners 
reserved,  though  far  from  stern  and  forbidding. 
Candor  and  moderation  are  essential  ingredients  in 
the  judicial  character,  and  they  were  his  in  an  emi- 


LIFE    OF    JUDGE    SMITH.  205 

nent  degree.  He  would  have  been  far  removed 
from  the  political  judge,  seeking  popularity  from  his 
judicial  decisions,  and  estimating  the  politics  of 
parties  before  him,  as  ingredients  to  be  weighed,  as 
well  as  the  evidence  before  him.  His  independence 
and  impartiality  would  have  soon  been  felt  and  ac- 
knowledged, even  by  the  parties,  as  well  as  the  spec- 
tators of  the  scene.  His  fortitude,  firmness,  and  in- 
flexibility, as  they  are  much  wanted  on  the  bench,  so 
they  would  never  desert  him  for  a  moment.  His  ut- 
most diligence  would  be  employed,  in  investigating 
the  evidence  and  the  rule  of  law  applicable  to  the 
case.  He  was  exemplary  for  patience  and  prudence, 
and,  when  necessary,  he  could  reprehend  as  well  as 
praise.  His  strict  regard  to  truth,  his  spotless  integ- 
rity, his  enlightened  and  liberal  principles,  his  re- 
gard for  the  institutions  of  religion,  morals,  and  edu- 
cation, his  great  purity  of  heart,  his  delicate  and 
scrupulous  sense  of  honor  and  honesty,  —  all  these 
qualities  would  have  placed  him  among  the  first,  if 
they  had  not  made  him  the  very  first,  of  judges.", 

It  would  be  difficult  to  find  two  men  more  unlike, 
in  many  respects,  than  Washington  and  the  man 
who  has  given  this  sketch  of  his  character.  Yet  in 
Judge  Smith  might  be  found,  with  some  trifling  ex- 
ceptions, and  combined  in  different  proportions,  all 
the  qualities  which  he  has  here  ascribed  to  that  ex- 
traordinary man.  His  countenance  and  bearing, 
though  entirely  unlike  those  of  Washington,  and 
often  relaxed  into  the  most  humorous  expression, 
were  yet  those  of  a  man  whom  it  might  not  be  safe 
to  approach  with  anything  like  disrespect.  His  keen 
18 


206  LIFE    OF    JUDGE    SMITH. 

and  penetrating  eye,  his  whole  bearing  and  deport- 
ment, were  such  as  to  give  the  impression  of  a  mind, 
that  "  looked  quite  through  the  deeds  of  men,"  of  a 
lofty  independence,  a  proud  consciousness  of  integ- 
rity, a  courage,  an  inflexibility  of  purpose,  to  be 
moved  neither  by  the  hope  of  gain,  by  flattery,  nor 
threats.  It  is  possible  that  his  wit,  while  it  sometimes 
enlivened  a  dull  cause,  may  also  at  times  have  exas- 
perated a  dull  advocate,  and  that,  by  taking  some- 
thing from  the  apparent  dignity  of  the  judge,  it  may 
also  have  taken  something  from  the  apparent  weight 
of  his  opinions.1  Notwithstanding  the  quickness  of 
his  perceptions,  and  his  ardent  temperament,  he  was 
remarkably  dispassionate  in  the  trial  of  causes,  and 
distinguished  not  more  for  his  acuteness  and  learn- 
ing, than  for  the  soundness  of  judgment,  the  candor, 
moderation,  patience,  and  diligence,  with  which  he 
went  through  with  laborious  and  protracted  investi- 
gations, whether  relating  to  the  evidence,  or  the  rule 
of  law  applicable  to  the  case.  But  it  may  be  ques- 
tioned whether,  after  having  satisfied  himself,  he 
was  always  equally  patient  in  bearing  with  the  te- 


1  He  was  distinguished  for  his  uniform  courtesy  to  all  the  members 
of  the  bar,  but  in  a  few  instances  could  not  refrain  from  indulging  in 
some  little  pleasantry  at  their  expense.  On  one  occasion,  it  is  said,  just 
as  the  lawyer  was  rising  to  argue  his  cause,  the  judge  laughingly  pro- 
posed, that  he  should  let  it  go  to  the  jury  without  argument ;  "  for," 
said  he,  "  your  cause  is  a  good  one,  and  I  have  no  doubt  the  jury  think 
so  too.  I  am  not  quite  so  clear  they  will  continue  to  think  so  after  you 
have  argued  it."  On  another  occasion  a  young  lawyer,  more  conceited 
than  wise,  said,  "  May  it  please  your  honor,  the  prisoner  is  underwitted. 
Surely  you  will  assign  him  counsel."  "  Yes,"  replied  the  judge  ;  "but 
then  it  must  be  such  counsel  as  may  be  of  service  to  him  in  that 
regard." 


LIFE    OF    JUDGE    SMITH.  207 

dious  processes  required  by  slower  minds,  in  argu- 
ments at  the  bar.  I  have  the  highest  authority  for 
saying,  that,  however  decided  he  may  have  been  in 
his  views  of  a  case,  he  was  remarkably  free  from  the 
imputation  of  ever  assuming  the  part  of  an  advocate, 
when  charging  the  jury.1  No  man,  who  understood 
anything  of  his  character,  could  hope  to  have  the  least 
influence  with  him,  through  his  political  opinions. 
On  that  ground,  no  charge  was  ever  seriously  brought 
against  him ;  and  the  large  vote  by  which  his  salary 
was  increased,  was  an  unequivocal  testimony  to  his 
entire  impartiality.  I  once  asked  Governor  Plumer, 
who,  from  a  warm  personal  and  political  friend,  had 
become,  in  both  respects,  entirely  estranged  from 
him  for  many  years,  if  he  believed  that  politics  ever 
had  any  influence  on  Judge  Smith's  judicial  con- 
duct ;  and  he  replied,  in  the  most  emphatic  manner, 
"  Never,  never."  '  Another  man  of  the  same  political 
party  with  Governor  Plumer,  told  me,  that  being  upon 
a  jury  in  high  party  times;  he  watched  the  chief  jus- 
tice closely  with  reference  to  this  matter,  "  and  I  am 
confident,"  he  said,  "  that  party  politics  had  no  in- 
fluence upon  him  ;  not  the  slightest." 

I  never  have  seen  the  person  who  in  his  intellect- 
ual habits  appeared  to  me  so  entirely  the  personifica- 
tion of  justice.  As  a  man,  he  had  very  decidedly  his 
preferences  and  his  dislikes,  and  in  the  choice  of  his 
associates  was  guided  by  them  ;  but  as  a  judge,  all 


1  It  is  said  that  a  sailor  once  having  heard  a  case  tried,  was  asked 
what  he  thought  of  the  pleas.  He  spoke  well  of  the  lawyers,  but  said 
he  thought  the  white-headed  man  that  sat  up  high  at  the  end  of  the 
court-house,  argued  the  best. 


208  LIFE    OP    JUDGE    SMITH. 

these  feelings  were  laid  aside.  No  one  had  any- 
thing to  hope  from  his  friendship,  or  to  fear  from  his 
enmity.  The  men  were  forgotten,  the  law  and  the 
testimony  alone  regarded.  The  influence  on  a 
neighbor,  a  brother,  or  even  upon  a  child,  could  in 
no  way  affect  his  decision.  In  reading  some  of  the 
reports,  which  he  has  drawn  up  in  reference  to  per- 
sons of  quick  sensibilities,  and  who  certainly  had 
claims  upon  his  kindness,  I  have  sometimes  felt  as  if 
he  were  needlessly  cruel,  while  in  fact  he  had  only 
set  entirely  aside  those  feelings  which,  under  such 
circumstances,  cannot  be  indulged  without  perverting 
the  ends  of  justice.  This  severe  regard  to  justice, 
with  the  keen  intellectual  powers  which  cut  away 
everything  irrelevant,  and  present  the  naked  facts 
according  to  the  evidence  in  the  case,  under  the 
light  of  the  great  legal  principles  that  should  bear 
upon  them,  is,  if  I  mistake  not,  the  highest  attribute 
of  a  judge,  and  it  has  been  possessed  by  few  men 
in  a  higher  degree  than  by  him.  His  manly  intel- 
lectual vigor,  his  talent  for  business,  his  rare  saga- 
city in  judging  of  men  and  things,  his  great  learning, 
his  straightforward  independence,  and,  above  all,  the 
spotless  purity  of  his  character,  have  placed  him 
among  the  ablest  of  New  England  judges. 

"  But  I  shall  now,  to  use  the  words  of  Bishop 
Burnet,  in  his  life  of  Sir  Matthew  Hale,  "  conclude 
all  that' I  have  to  say  of  him,  with,  what  one1  of  the 
greatest  men  of  the  profession  of  the  law,  sent  me 
as  an  abstract  of  the  character  he  had  made  of  him, 

»  Jeremiah  Mason. 


LIFE    OF    JUDGE    SMITH.  209 

upon  long  observation  and  much  converse  with  him." 
"  Judge  Smith's  natural  powers  of  mind  were  of  a 
high  order.  With  an  ardent  and  excitable  tempera- 
ment, he  acquired  knowledge  easily  and  rapidly. 
After  he  commenced  the  practice  of  law,  he  always 
indulged  himself  freely  in  miscellaneous  reading  and 
studies ;  and  his  attainments  in  literature  and  general 
knowledge  were  highly  respectable.  But  the  chief 
labor  of  his  life  was  devoted  to  the  study  of  the  law. 
This  he  studied  systematically  as  a  science.  As  a 
counsellor  and  advocate,  he  soon  rose  to  the  first 
grade  of  eminence  at  the  bar.  Although  successful 
at  the  bar,  he  was  preeminently  qualified  for  the 
office  and  duties  of  a  judge.  With  an  ample  stock 
of  learning,  in  all  the  various  departments  and 
branches  of  the  law,  well  digested  and  methodized, 
so  as  to  be  always  at  ready  command,  he  united 
quickness  of  perception,  sagacity,  and  soundness  of 
judgment.  Disciplined  by  a  long  course  of  laborious 
study,  he  was  able  to  bear  with  patience  the  most 
tedious  and  protracted  investigations  and  discussions, 
to  which  a  judge  is  so  constantly  subjected.  The 
most  distinguishing  traits  of  his  character  were  im- 
partiality and  inflexible  firmness,  in  the  performance 
of  all  his  judicial  duties.  As  chief  justice  of  the 
supreme  court  of  New  Hampshire,  he  found  a  suffi- 
ciently ample  field  for  the  exercise  of  all  his  talents. 
Before  the  Revolution,  little  had  been  done  in  the 
colony  of  New  Hampshire  to  systematize  the  prac- 
tice of  law ;  and,  for  many  years  after  the  Revolu- 
tion, lawyers  were  seldom  selected  to  fill  the  bench 
of  even  the  highest  courts.  The  consequence  was, 
18* 


210  LIFE    OF     JUDGE    SMITH. 

that  the  practice  and  proceedings  of  the  courts  were 
crude  and  inartificial;  and  the  final  determination 
of  causes  depended  more  on  the  discretion  and  arbi- 
trary opinions  of  the  judges,  and  jurors,  than  on  any 
established  rules  and  principles  of  law.  This,  of 
course,  rendered  judicial  decisions  vague  and  uncer- 
tain, the  most  intolerable  evil  of  a  bad  administration 
of  justice,  and  but  slightly  alleviated  by  the  highest 
purity  of  intention  in  the  judges.  To  remedy  this 
evil,  Judge  Smith  labored  with  diligence  and  perse- 
verance, by  establishing  and  enforcing  a  more  orderly 
practice,  and  by  strenuous  endeavors  to  conform  all 
judicial  decisions  to  known  rules  and  principles  of 
law.  His  erudition  and  high  standing  with  the  pro- 
fession, as  well  as  with  the  public  at  large,  enabled 
him  to  effect  much  in  this  respect ;  and  to  his  labors 
the  state  is  greatly  if  not  chiefly  indebted,  for  the  pre- 
sent more  orderly  proceedings,  and  better  administra- 
tion of  justice."  l 


1  There  has  been  something  quite  remarkable  in  the  longevity  of  those 
associated  with  Judge  Smith,  at  the  time  he  took  his  seat  upon  the  New 
Hampshire  bench.  Paine  Wingate  was  born  in  May,  1739,  and  gradu- 
ated at  Harvard  College  in  1759.  He  studied  theology,  and  was  a  set- 
tled minister  in  Hampton  Falls,  from  1763  till  1771.  He  then  estab- 
lished himself  as  a  farmer  in  Stratham.  In  1787  he  was  chosen  a  repre- 
sentative, and  in  1789  a  senator  in  congress.  From  1793  to  1795  he  was 
again  a  representative.  In  1798  he  was  appointed  a  judge  in  the  supe- 
rior court,  and  there  continued  till  May,  1809,  when  he  was  seventy  years 
old.  He  continued  to  reside  in  Stratham,  till  the  congregation,  over 
which  he  had  been  settled,  had  become  a  part  of  the  great  congregation 
of  the  dead,  and  he  had  outlived  all  who  were  members  of  the  college 
while  he  was  there,  all  who  were  members  of  the  house  of  representa- 
tives and  of  the  senate,  in  which  he  had  first  taken  his  seat,  and  all,  ex- 
cepting one,  who  were  members  of  the  court  at  the  time  of  his  appoint- 
ment to  the  bench.  He  died  the  7th  of  March,  1838,  having  attained  to 
the  great  age  of  ninety-nine  years.  His  widow,  with  whom  he  had 


LIFE    OF    JUDGE    SMITH.  211 

lived  nearly  three  quarters  of  a  century,  was  the  sister  of  Timothy  Pick- 
ering, and  died  when  more  than  a  hundred  years  old. 

Timothy  Farrar  was  born  in  July,  1747,  and  graduated  at  Harvard 
College  in  1767.  At  the  commencement  of  the  war,  in  1775,  he  received 
by  the  same  mail  commissions  as  a  major  in  the  army,  and  as  a  judge 
in  the  court  of  common  pleas.  He  became  a  judge,  and  in  one  or  the 
other  of  the  New  Hampshire  courts  continued  to  hold  the  office  more 
than  forty  years.  He  was  a  modest,  well-informed,  conscientious,  de- 
vout man ;  and  now,  having  almost  completed  his  ninety-eighth  year,  is 
enjoying  the  cheerful  serenity  which  comes  only  from  a  well-spent  life 
and  a  firm  religious  faith. 


CHAPTER   VII. 

JUDGE     SMITH'S    POLITICAL     FEELINGS  —  JOSEPH    s. 

BUCKMINSTER FISHER    AMES LETTERS    TO    MRS. 

SMITH DEATH    OF    HIS    YOUNGEST    SON. 

MR.  SMITH  was  appointed  chief  justice  in  May,  1802, 
and  resigned  the  office  in  June,  1809.  I  have 
thought  it  best  to  give  the  account  of  his  judicial  life 
and  character  unbroken  by  other  events.  At  first 
his  interest  in  political  affairs  was  very  strong,  and  he 
was  not  without  some  of  the  fears,  in  which  many  of 
the  best  men  at  that  time  indulged,  in  respect  to  the 
great  experiment  of  self-government,  which  had  not 
then  been  fairly  tried.  The  following  extracts  from 
two  letters  to  William  Plumer,  dated  21st  November, 
and  25th  December,  1803,  will  show  his  feelings, 
although,  from  the  half  ironical  style  in  which  they 
are  written,  their  meaning  may  not  be  perfectly  clear 
to  a  stranger.  He  inquires  earnestly  and  minutely 
about  the  negotiation  for  Louisiana  and  the  Floridas, 
which  was  then  going  on,  and  adds :  "I  do  not 
know  how  it  is  with  my  brother  sovereigns,  the  peo- 
ple, but  really,  considering  that  our  servants  abhor 


LIFE     OF     JUDGE     SMITH.  213 

1  sacracy,'  and  are  passionately  fond  of  '  pobleesity,' 
(as  S.  would  say,)  it  is  astonishing  how  little  is 
known  of  all  these  things.  It  has  always  been  said 
that  kings  are  ignorant.  This  is  no  doubt  the  case 
in  monarchies.  But  is  it  applicable  to  republican 
kings  ?  If  the  sovereign  people  are  ignorant,  consid- 
ering that  they  are  by  no  means  destitute  of  passions, 
I  fear  they  will  make  but  sorry  kings." 

"  I  am  glad  to  find  that  federalism  is  at  a  low  ebb 
with  you.  It  is  dead,  and  I  sincerely  wish  it  buried 
out  of  my  sight.  Don't  flatter  yourselves  that  it  is 
ever  to  have  a  resurrection.  Federalism  can  suit 
only  a  virtuous  state  of  society.  These  times  de- 
mand other  principles  and  other  systems.  Abjure, 
then,  that  uprightness  which  cannot  accommodate 
itself  to  events  —  which  cannot  flatter  the  people  :  — 
that  stiff,  ungracious  patriotism,  which  professes  to 
save  the  people  from  their  worst  enemies,  themselves. 
Form  a  union  with  some  of  the  better  sort  of  the 
democrats,  and  with  some  of  the  worst ;  we  want  the 
former  to  increase  our  numbers,  and  the  latter  to  do 
our  lying.  Federalism  has  been  ruined  for  want  of 
active  partisans  of  this  description.  Be  sure  to  en- 
gage Duane,  Cheetham,  and  some  of  the  most  expert 
in  this  science,  in  the  ancient  dominion.  Appropos 
to  lying,  secure  Baldwin,  he  will  be  useful  in  the 
southern  section.  He  is  a  prudent  man,  and  knows 
the  worth  of  everything.  There  is  nothing  he  will 
not  sell,  and  therefore  he  may  be  bought.  We  must 
have  a  new  set  of  leaders.  Pickering,  Dexter,  Ames, 
Tracy,  Ellsworth,  Griswold,  Wolcott,  Jay,  Hamilton, 
King,  Ross,  Bayard,  Marshall,  Harper,  W.  Smith,  &c. 


214  LIFE     OF     JUDGE     SMITH. 

must  be  abandoned.  They  have  had  their  day. 
They  cannot  be  sufficiently  accommodating.  Let  us 
have  a  goodly  number  of  foreigners,  they  will  always 
be  favorites  of  the  people.  Let  us  have  men  who 
can  relax  their  principles  of  morality  as  occasion  may 
require,  and  adapt  themselves  to  circumstances  with 
as  much  facility  as  joiners  open  and  shut  their  rules. 
Our  old  rulers  in  our  new  body  would  be  like  trees 
transplanted  from  a  forest  into  a  garden,  whose 
branches  it  is  difficult  to  bend  to  the  fancy  of  the 
gardener.  We  must  have  more  pliant  men.  But 
why  should  I  doubt  your  skill  to  arrange  this  busi- 
ness ?  It  is  sufficient  that  I  have  given  a  hint. 

"  Is  it  possible  that  we  can  long  stick  together  as 
a  nation,  when  there  is  so  little  cement,  and  so  much 
centrifugal  force  in  this  heterogeneous  mass  ?  To 
keep  a  nation  together,  there  must  be  national  insti- 
tutions as  well  as  a  national  government ;  national 
courts,  national  militia,  army,  navy,  a  national  debt, 
national  taxes,  national  patriots.  Now  we  have  none 
of  these  things,  except  a  national  debt,  and  a  little 
bit  of  a  navy. 

"  Themistocles,  when  desired  at  a  feast  to  touch 
a  lute,  said  he  could  not  riddle,  but  he  knew  how  to 
make  a  small  town  a  great  city.  Mr.  Jefferson  can 
fiddle,  and  make  models  of  dry  docks,  and  all  that, 
but  he  cannot  make  a  number  of  small  states  a  great 
nation.  He  can  add  to  our  territory,  and  to  our 
numbers,  but  these  additions  tend  only  to  diminish 
our  strength.  It  never  troubles  a  wolf,  how  large  the 
sheepfold,  or  how  many  the  sheep  be. 

"  Now  don't  say  that  these  things  will  ever  take  a 


LIFE     OF     JUDGE     SMITH.  215 

more  favorable  turn,  that  the  good  sense  of  the  people 
will  ever  lead  them  to  cherish  national  feelings  and 
national  institutions.  It  is  idle  to  expect  it,  it  is  un- 
natural. The  very  end  and  design  of  national  insti- 
tutions, is  to  counteract  the  local  and  selfish  spirit  of 
the  people.  Man  is  a  gregarious  animal,  it  is  true  ; 
but  nature  leads  to  small  herds.  Experience  evinces 
that  there  is  nothing  so  contrary  to  common  sense, 
so  repugnant  to  the  principles  of  justice,  freedom  and 
humanity,  but  will  pass  at  certain  junctures,  when  the 
infatuation  of  party  rage  has  turned  the  giddy  brains 
of  the  unthinking  multitude.  This  party  spirit,  like 
the  poor,  we  have  always  with  us.  It  will  be,  as  it 
always  has  been,  in  the  power  of  bold  ambitious  de- 
magogues to  ride  the  people,  by  persuading  them 
that  they  are  in  danger  of  being  ridden.  Nothing  is 
more  easy  than  to  inflame  the  passions  of  the  multi- 
tude ;  it  is  easy  to  acquire  their  confidence,  and  easy 
to  lose  it.  While  in  favor,  there  is  nothing  which 
the  popular  leader  may  not  say  or  do ;  and  when  not 
in  favor,  the  wisest  man  in  the  state  is  the  man  who 
has  the  least  influence." 

This  interest  in  political  matters  gradually  dimin- 
ished, as  Judge  Smith  became  more  absorbed  in  his 
judicial  duties,  and  in  his  letters  for  several  years,  I 
find  hardly  a  passing  reference  to  the  political  events 
of  the  day.  Among  other  things,  he  amused  himself 
by  writing  a  few  articles  for  the  Anthology.  He  was 
first  applied  to  in  August,  1805,  by  the  Rev.  Joseph 
S.  Buckminster,  who  in  his  letter,  says,  "  Your  man- 
uscript volumes  are  well  known  by  some  of  your 
friends  here,  to  contain  many  titbits  of  literature, 


216  LIFE     OF     JUDGE     SMITH. 

which  would  be  highly  relished,  if  they  could  be  per- 
mitted to  garnish  the  pages  of  the  Anthology."  To 
this  Judge  Smith  replied,  13th  December,  1805.  "  I 
have  pretty  many  trifles  of  the  kind  you  allude  to, 
but  as  the  Anthology  grows  better,  (it  evidently 
does,)  and  my  manuscript  trifles  grow  worse,  you  will 
readily  perceive  there  is  little  prospect  of  their  ever 
meeting.  But  still  I  am  desirous  of  adding  some- 
thing to  the  pages  of  the  Anthology.  This  new  zeal 
is  produced  by  reading  the  Massachusetts  Term  Re- 
ports, by  G.  Williams.  I  have  a  fancy  to  try  my 
hand  at  a  review  of  this  work.  It  is  somewhat  in  my 
way.  If  no  other  person  attempts  it,  and  it  meets 
your  editor's  plan,  I  will  for  next  month,  or  the  month 
after,  send  something  which  may  be  committed  to 
the  press  or  the  flames,  according  to  the  verdict  of 
the  critics  thereon.  Let  me  hear  from  you.  If  I  do 
not,  this  new  zeal  will  soon  flag.  If  you  approve,  I 
shall  stand  engaged  to  make  the  attempt. 

"  I  have  finished  your  Fawcett,  and  like  him.  He, 
however,  reminds  me  of  Horace  Walpole's  criticism 
upon  Johnson.  'He  illustrates  till  he  fatigues,  and 
continues  to  prove  after  he  has  convinced  :  he  charges 
with  several  sets  of  phrases  of  the  same  calibre.'  But 
still  he  is  a  man  of  genius,  a  philanthropist,  and  a 
poet,  and  I  should  be  gratified  by  the  perusal  of  the 
second  volume.  I  shall  return  it  the  first  opportunity 
with  Walker,  who  is  well  enough,  and  no  better  — 
nothing  striking.  He  does  not  interest,  amuse,  or 
much  inform  me.  I  do  not  rise  from  him  much  dis- 
satisfied with  myself,  or  much  pleased  with  him  ;  ergo, 
he  is  not  a  good  preacher.  You  see  we  Exeter  peo- 


LIFE     OF     JUDGE     SMITH.  217 

pie  are  always  ready  to  favor  preachers  with  our 
opinions.  It  is  no  small  proof  of  our  benevolence, 
for  we  have  hitherto  derived  no  advantage  from  it ; 
and  you  may  add,  '  nor  we.'  " 

Mr.  Buckminster's  answer  is  dated  December  18. 
"  My  dear  sir :  I  was  highly  gratified  by  learning  that 
you  had  not  forgotten  me,  nor  the  Anthology,  nor 
literature,  in  the  intervals  of  relaxation  from  the  Musce 
severiores ;  for  it  seems,  as  long  as  you  had  that  vile 
judge's  coif  about  your  ears,  it  was  impossible  to 
make  you  hear  even  the  sweet  sounds  of  flattery.  I 
am  exceedingly  happy  that  you  propose  to  review 
Williams's  Reports,  and  still  more  so,  that  you  have 
already  read  them  ;  let  not  your  ardor  cool,  I  pray 
you,  and  believe  me,  the  editors  are  fully  sensible  of 
the  honor  of  the  proposal.  1  am  requested  also  to 
urge  you  to  send  a  review  of  Tucker's  Blackstone. 
If  you  do  not  own  the  book,  it  shall  be  sent  on  to 
you.  Remember  you  have  said,  that  whatever  your 
hands  find  to  do,  you  do  with  all  your  might,  which 
we  shall  interpret,  *  with  all  despatch.' 

"  You  are  right  in  your  conjecture  respecting  Faw- 
cett ;  he  is  no  mean  poet.  But  it  is  remarkable  that 
this  man,  who  drew  fuller  audiences  than  any  rational 
preacher,  before  or  since  ;  whom  Mrs.  Siddons  regu- 
larly attended,  to  learn  elegance  of  gesture  and  elo- 
cution, and  who  was  decidedly  at  the  head  of  pulpit 
talents  among  the  dissenters  of  Great  Britain,  abdi- 
cated his  power  at  its  very  height,  and  is  now  retired 
as  a  private  gentleman,  in  the  neighborhood  of  Lon- 
don, where,  with  a  handsome  fortune,  I  doubt  not, 
he  feeds  upon  more  substantial  food  than  popularity. 
19 


218  LIFE    OF    JUDGE    SMITH. 

With  your  leave,  I  think  that  Walpole's  remark, 
when  applied  to  Johnson's  style,  is  utterly  false,  be- 
cause it  is  so  very  true  of  Fawcett's  ;  and  every  one 
must  see  that  these  two  styles  are  utterly  dissimilar. 
Walpole  was  a  kind  of  quidnunc  in  literature,  and, 
as  I  suspect,  incompetent  to  relish  the  heavy  but  ad- 
mirable proportions  of  Johnson's  style. 

"  I  am  sorry  to  close  so  soon,  but  I  am  called  out. 
I  can  only  say,  do  not  suffer  your  zeal  to  subside. 
1  Ne  exudas  magnis.'  Mr.  Ames  '  has  not  engaged 
to  accept ;  it  is  a  great  deal  to  be  able  to  say  he  has 
not  yet  refused.  Yours,  with  respect.  J.  S.  B." 

The  review  was  forwarded  in  February,  1806,  with 
the  accompanying  note.  "  Dear  sir  :  I  have  just  finish- 
ed my  critique  on  Williams's  Reports,  and  send  it 
because  I  can  bear  it  no  longer  in  my  sight.  I  am 
heartily  sick  of  it,  of  Williams,  judges,  law,  and 
everything  but  the  Anthology  and  its  friends.  If  I 
did  not  think  it  would  do  some  good,  I  would  not 
send  it  at  all.  I  have  aimed  at  utility,  and  therefore 
have  not  spared  labor  ;  I  hate  a  flimsy,  general  criti- 
cism. I  have  tried  to  make  it  such  as  will  be  read ; 
and  yet,  if  you  knew  how  many  severe  things  I  have 
omitted,  how  many  hard  things  I  have  softened,  and 
flattering  things  I  have  inserted  against  my  own  opin- 
ion, as  your  attorney-generals  draw  the  indictments, 
your  opinion  of  my  good  humor  and  politeness  would 
probably  be  somewhat  increased.  It  being  a  new 
thing,  I  have  indulged  myself  in  taking  broad  ground. 
I  could  easily  have  written  a  book ;  my  mind  has 

1  Fisher  Ames  had  just  been  chosen  president  of  Harvard  College. 


LIFE    OF    JUDGE    SMITH.  219 

teemed  with  conceptions,  such  as  they  are.  I  am 
like  a  bottle  filled  with  new  fermentable  liquor.  I 
have  been  ready  to  burst.  Probably  you  will  think 
this  '  have  been  '  requires  to  be  put  into  the  present 
tense.  I  entrust  it  to  your  critical  tribunal,  as  Puff 
did  his  tragedy  to  the  players,  with  permission,  which 
they  used  freely,  of  cutting  out  ad  libitum.  I  have 
not  noted  my  authorities  for  many  of  the  sentiments 
and  even  the  language  in  the  margin,  because  I  did 
not  think  it  proper.  The  learned  reader  will  easily 
know  that  many  of  the  sentiments  are  not  my  own  ; 
they  will  stand  the  test." 

The  review '  here  spoken  of,  is  written  with  great 
spirit,  and  attracted  no  small  attention  in  its  day. 
The  criticisms,  though  severe,  were  of  the  kind  to  be 
useful,  both  to  the  judges  and  the  reporter.  The  im- 
portance of  law  reports  is  thus  regarded  :  "  A  correct 
history  of  what  passes  in  courts  of  justice  is  of  incal- 
culable advantage.  With  a  single  exception,  it  is  the 
best  of  all  books.  It  perpetuates  the  labors  and  sound 
maxims  of  wise  and  learned  judges.  It  serves  to 
make  the  path  of  duty  plain  before  the  people,  by 
making  the  law  a  known  rule  of  conduct ;  and,  for 
the  same  reason,  it  diminishes  litigation.  It  has  a 
tendency  to  limit  the  discretion  of  judges,  and  conse- 
quently increases  liberty.  Maxims  of  law  are  like 
landmarks. 

"  Limes  agro  positus  litem  ut  discerneret  arvis." 

In  respect  to  the  style  of  reports,  it  is  said,  "  Pro- 
lixity fatigues,  while  extreme  brevity  leads  to  ob- 

1  Review  of  first  volume  of  Williams's  Massachusetts  Reports,  con- 
tained in  the  Monthly  Anthology  for  March,  1806. 


220  LIFE    OF    JUDGE    SMITH. 

scurity.  But  there  is  a  conciseness  which  is  no 
enemy  to  perspicuity,  and  a  prolixity  which  con- 
founds instead  of  enlightening.  Perhaps  it  is  not  in 
the  power  of  a  reporter  to  say  just  enough  for  some 
readers,  without  saying  too  much  for  others.  But  we 
are  decidedly  of  opinion  that  modern  reports  are,  in 
general,  too  prolix.  Expunge  from  them  everything 
not  material  to  the  statement  of  facts,  everything 
from  the  arguments  which  does  not  bear  on  the 
question,  and  everything  given  for  the  reasons  of  the 
decision  which  is  wholly  foreign  or  irrelevant,  and 
many  a  huge  folio  would  dwindle  into  a  duodecimo. 
The  eight  or  ten  volumes  of  Vesey,  Jr.,  would  be  re- 
duced to  two  or  three  ;  Dallas  would  be  reduced  one 
half;  Wallace  to  a  few  pages  ;  Cranch  would  make 
No.  1  of  Vol.  I. ;  and  Root  would  entirely  disap- 
pear." 

The  writer,  however,  does  not  attribute  all  the 
blame  to  the  reporter.  "  We  are  also  of  opinion," 
he  adds,  "  that  the  arguments  of  some  of  the  judges 
might  have  been  condensed  with  advantage  to  the 
public,  and  without  doing  any  injury  to  the  argu- 
ments themselves.  We  are  not  agreeably  impressed 
with  '  wordy  eloquence '  from  the  bench,  still  less 
with  attempts  at  eloquence  without  success.  As  the 
style  of  laws  should  be  concise,  plain  and  simple,  so 
decisions  of  courts,  which  declare  the  law,  should  be 
neither  tumid,  diffuse,  nor  rhetorical.  The  language 
of  judges  should  correspond  with  the  dignity  of  the 
office,  and  with  the  majesty  of  the  subject.  Great 
ornament  is  as  ill  becoming  in  the  style  of  a  'reve- 
rend judge,'  as  a  black  gown  turned  up  with  pink 
is  unbecoming* his  person.  The  sages  of  the  law 


LIFE    OF    JUDGE    SMITH.  221 

should  not  for  a  moment  be  suspected  of  sacrificing 
precision  to  the  harmony  of  periods.  Lord  Mans- 
field was  a  scholar  and  an  orator ;  but  his  eloquence 
at  the  bar,  in  the  senate,  and  on  the  bench,  were  as 
unlike  each  other,  as  the  eloquence  of  which  we 
complain  is  unlike  either.  When  our  judges  shall 
have  taken  as  much  pains  in  forming  opinions  in  the 
cases  before  them,  as  Lord  Mansfield  always  did,  and 
shall  have  spent  as  many  years  in  the  acquisition  of 
polite  and  elegant  literature  as  he  did,  we  will  not 
object  to  their  being  as  eloquent  on  the  bench  as  his 
lordship.  It  will  no  doubt  subject  us  to  the  suspicion 
of  dulness ;  yet  we  shall  not  scruple  to  declare,  that, 
in  a  judge,  we  prefer  labor  to  genius,  and  pains- 
taking to  ingenuity." 

He  then  illustrates  his  remarks  by  comments  on 
particular  cases,  and  adds :  "  Other  decisions  might 
be  mentioned  as  exceptionable  ;  but  we  forbear  en- 
tering further  into  the  subject.  If  the  learned  judges 
should  be  disposed  to  think  that  we  have  already 
gone  too  far,  we  trust  that  we  shall  have  their  for- 
giveness, when  they  consider  that  we  have  differed 
less  in  opinion  with  the  court  than  they  have  differed 
from  each  other.  We  can  assure  them,  that  the  ob- 
servations we  have  made  have  not  proceeded  from  a 
desire,  on  our  part,  to  depreciate  their  learning  or 
talents,  for  which  we  have  the  most  cordial  respect ; 
nor  with  a  view  to  lessen  the  value  of  Mr.  W.'s 
labors ;  for  we  believe  they  will  prove  advantageous 
to  the  public,  and  honorable,  we  sincerely  wish  we 
could  add  profitable,  to  him  ;  but  principally  that  we 
may  have  an  opportunity  of  expressing  our  sincere 
19* 


222  LITE    OF    JUDGE    SMITH. 

conviction,  that  our  system  of  jurisprudence  is  radi- 
cally defective,  and  that  we  shall  never  have  any 
thoroughly-examined  and  well-digested  determina- 
tions —  decisions  which  will  stand  the  test  of  time, 
and  serve  as  permanent  and  fixed  rules,  so  long  as 
the  judges,  the  depositaries  of  our  law,  are  wandering 
through  the  state,  without  any  fixed  or  permanent 
place  of  abode. 

"  The  old  proverb,  that  a  rolling  stone  gathers  no 
moss,  is  not  more  true  than  that  a  court,  constantly 
in  motion,  settles  and  establishes  no  principles  of  law. 
When  the  principal  business  of  a  court  is  to  travel, 
and  to  retail  the  law  in  every  county  town,  is  it  rea- 
sonable to  expect  deep  research,  nice  discrimination, 
or  copious  discussion  on  legal  questions  ?  Let  our 
readers  figure  to  themselves  our  supreme  judicial  court 
in  session  at  Lenox,  for  example.  Questions  of  law 
and  trials  of  fact  are  blended  together  on  the  docket. 
Amid  the  tumult  and  bustle  necessarily  incident  to 
trials  by  jury,  counsel  occupied  and  teased  with  clients, 
witnesses,  &c.,  it  is  easy  to  see  how  questions  of  law 
will  be  argued,  even  by  eminent  counsel.  The  judges, 
long  absent  from  their  families,  can  hardly  be  suppos- 
ed to  be  perfectly  at  ease  in  their  minds.  Denied  all 
access  to  books,  and  fatigued  with  the  labors  of  the 
day,  and  liable,  from  their  situation,  to  constant  inter- 
ruptions, they  cannot  so  much  as  have  an  opportunity 
of  communicating  their  sentiments,  or  of  hearing  one 
another's  reasons.  On  Saturday  morning  they  must 
pronounce  judgment.  Under  such  circumstances,  is 
it  not  cruel  to  exact  an  opinion,  and  ridiculous  to 
expect  a  mature  and  well-digested  one  ?  The  first 


LIFE    OF    JUDGE    SMITH.  223 

thoughts  which  occur  to  a  sensible,  and,  if  you  please, 
to  a  learned  lawyer,  on  legal  questions,  may  be  reason- 
able, we  grant ;  but  they  may  not  be  so  reasonable, 
so  just,  as  after- thoughts.  The  conjectural  positions 
of  natural  reason,  if  not  fortified  by  precedents,  if  not 
confirmed  by  elementary  writers,  or  if  they  are  not  the 
result  of  much  previous  study  and  patient  investiga- 
tion, are  always  to  be  distrusted.  A  judge  should  think 
reasonably,  but  he  should  think  and  reason  as  one  long 
accustomed  to  the  judicial  decisions  of  his  predeces- 
sors. He  should  be  well  versed  in  history,  and  espe- 
cially in  the  history  of  the  constitution,  laws,  manners, 
and  customs  of  his  own  country.  The  study  of  New 
England  antiquities,  if  we  may  be  allowed  the  expres- 
sion, is  a  necessary  qualification  of  a  New  England 
judge. 

"  We  believe  it  is  in  the  power  of  the  legislature  to 
lay  the  foundation  of  a  system  of  jurisprudence  which 
in  a  few  years  may  even  equal  that  of  Great  Britain. 
To  accomplish  this,  it  is  indispensable  that  the  trial  of 
facts  and  law  should  be  separated.  The  former  should 
be  in  each  county,  and  the  latter  in  one,  or,  at  most, 
in  two  or  three  stated  places.  There  is,  in  the  nature 
of  things,  no  more  reason  why  questions  of  law  should 
be  determined  in  each  county,  than  that  the  statutes 
should  be  framed  and  enacted  in  each  county.  County 
lines  have  nothing  to  do  with  either  ;  and  it  is  just  as 
proper  that  the  legislature  should  be  ambulatory,  as 
that  a  court,  not  of  trials,  but  of  law,  should  be  so." 

Most  of  the  suggestions  thrown  out  in  this  article, 
with  respect  to  the  judiciary  of  Massachusetts,  and  the 
mode  of  reporting  cases,  have  been  since  adopted,  to 


224  LIFE    OF   JUDGE    SMITH. 

the  great  and  manifest  improvement  of  both.  What 
influence  the  article  itself  may  have  had,  it  is  not 
possible  to  determine.  The  following  letter  from 
Mr.  Buckminster,  shows  how  it  was  received  at  the 
time. 

April,  13,  1806.  "  Dear  sir  :  It  is  not  less  in  con- 
sequence of  my  own  inclination,  than  in  pursuance  of 
the  request  of  the  Anthology  Club,  that  I  have  now 
set  down  to  return  you  thanks  for  the  communica- 
tion with  which  you  favored  us,  and  which  has  ap- 
peared, (I  hope  to  your  satisfaction,)  in  the  last  num- 
ber of  the  Review.  It  excites  great  speculation  here, 
especially  among  the  bar,  and  there  is  not  a  dis- 
sentient voice  on  the  subject  of  its  great  excellence 
and  importance.  The  lawyers  were,  at  first,  sadly 
puzzled.  Some  attributed  it  to  Mr.  Parsons,  others 
to  Charles  Jackson  ;  but  at  length  some  of  the  wisest 
of  them  were  satisfied,  from  internal  evidence,  that  it 
was  Judge  Smith.  S.  thinks  this  cannot  be  true, 
for  '  Smith  and  he  are  very  good  friends,  and  he  would 
not  have  spoken  of  him  in  such  terms.'  The  expres- 
sion, '  wordy  eloquence,'  he  takes  to  himself.  You 
have  put  your  hand  to  the  plough,  and  must  not  look 
back.  Pray  favor  us  with  something  else  —  Wil- 
son's works,  if  possible.  You  know  not  under  how 
great  obligations  you  have  laid  us." 

Twenty  years  after  this  correspondence,  Judge 
Smith,  wrote  the  following  sentence :  "  Mr.  Buck- 
minster,  (all  the  world  knows,  I  mean  the  younger,) 
in  his  words,  looks,  manners,  but  especially  in  the  pul- 
pit, had  a  spirit  beatified  before  its  time."  How  beau- 
tifully does  this  describe  the  impression  made  by  Mr. 


LIFE    OF    JUDGE    SMITH.  225 

Buckminster,  even  from  his  earliest  years.  I  do  not 
know  that  I  ever  witnessed  anything  more  affecting 
than  the  testimony  given  to  his  influence  many  years 
after  his  death,  at  a  public  gathering  of  the  graduates 
of  the  academy  at  which  he  received  his  early  educa- 
tion. The  afternoon  had  been  spent  in  delightful  re- 
collections. Former  days  were  revived,  and  the  harsh 
features  of  life  effaced,  when  one,  known  through  the 
nation  more  than  any  other  man  now  living  for  the 
power  of  his  intellect,  rose,  and  after  referring  in  lan- 
guage of  touching  pathos  to  other  benefactors  of  his 
youth,  spoke  with  overpowering  tenderness  of  him, 
his  early  friend,  "  whom  he  could  not  think  of  with- 
out strong  emotion,  nor  mention  without  tears." 
It  was  while  Judge  Smith  was  on  the  bench,  July  4, 

1808,  that  he  lost  his  friend  Fisher  Ames,  for  whom 
he  cherished  always  the  warmest  admiration.     It  is 
much  to  be  regretted  that  no  further  memorial  of  his 
delightful  domestic  qualities  has  been  preserved  ;  for 
the  account  prefixed  to  his  works  is  rather  a  brilliant 
essay  upon  his  genius,  than  a  sketch  of  his  life.     In 

1809,  Mr.  Cabot  collected  many  of  his  letters,  with  a 
view  of  preparing  a  volume  from  his  familiar  corres- 
pondence ;  but  the  undeitaking  was  not  carried  out, 
and  instead  of  a  monument,  has  proved  to  be  a  grave. 
Mr.  Ames,  I  have  been  told,  first  greatly  distinguished 
himself  in    the  Massachusetts  convention   that  was 
holden  to  decide  upon  the  constitution  of  the  United 
States.     Samuel  Adams  had  many  doubts  about  the 
biennial  election  of  representatives  in  congress,  and 
asked  earnestly  why  that  provision  had  been  made  ? 
Mr.  Ames  rose  in  reply,  and  looking  far  down  into 


226  LIFE    OF    JUDGE    SMITH. 

the  future,  with  all  the  fervid  eloquence  for  which  he 
was  afterwards  distinguished,  pictured  out  the  effect 
of  the  multiplied  elections  that  were  proposed.  This 
he  did  with  such  power  that,  when  he  sat  down,  Mr. 
Adams  replied  that  he  was  entirely  satisfied,  and  would 
make  no  further  objection.  But  brilliant  as  was  Mr. 
Ames's  public  career,  he  was  no  less  remarkable  for  his 
social  and  domestic  virtues,  for  the  purity  of  his  life, 
the  warmth  of  his  affections,  and  that  genial  overflow 
of  spirits  which  is  so  delightful  in  the  daily  intercourse 
of  friends,  and  which,  often  carrying  him  beyond  his 
strength,  left  him  languid  and  depressed.  It  was  Mr. 
Smith's  business,  as  we  have  seen,  in  the  winter  and 
spring  of  1796,  to  preserve  his  friend  from  the  too 
great  excitements  of  social  intercourse.  But  it  was  a 
task  beyond  his  ability ;  for  Mr.  Ames's  remarkable 
conversational  gifts  were  too  attractive  to  be  resisted, 
and  his  unwillingness  to  turn  his  friends  away  was 
such  that,  against  Mr.  Smith's  remonstrances,  he  would 
often  get  up  from  his  bed,  engage  in  conversation  with 
as  much  earnestness,  spirit  and  apparent  vigor,  as  if 
he  had  been  in  perfect  health,  and  then,  when  the 
company  had  withdrawn,  would  retire  to  his  bed  ut- 
terly exhausted. 

"  While  both  were  members  of  congress  "  —  I 
use  the  language  kindly  furnished  by  Mr.  Webster  — 
"  there  was  quite  an  unusual  friendship  and  intimacy 
between  them.  Mr.  Smith  entertained  the  most  sin- 
cere affection  for  the  social  qualities  of  Mr.  Ames,  with 
the  greatest  admiration  for  his  eloquence,  imagination 
and  high  tone  of  national  feeling.  On  the  other  hand, 
Mr.  Ames  found  in  Mr.  Smith  a  lawyer,  on  whose 


LIFE  OF  JUDGE  SMITH.  227 

learning  he  could  safely  lean,  a  sound  politician  of  the 
Washington  school,  and  a  companion  always  gay, 
cheerful  and  entertaining.  The  more  sanguine  tem- 
perament of  Mr.  Ames  brought  with  it  occasionally 
hours  of  depression,  as  well  as  brighter  hours  of  hope 
and  confidence.  Mr.  Smith,  on  the  contrary,  was 
more  equable,  and  often  chased  away  clouds  which 
the  state  of  affairs  seemed  to  be  gathering  over  the 
brow  of  his  friend.  No  two  men,  indeed,  during  the 
whole  period  of  Mr.  Smith's  service  in  congress,  were 
more  united  in  their  sentiments  and  their  purposes,  or 
exercised  a  more  genial  and  kindly  influence  on  each 
other  ;  an  influence  the  stronger,  be  it  remembered, 
because  they  had  a  common  bond  of  sympathy,  in  the 
deep  reverence  they  both  entertained  for  their  great  po- 
litical chieftain,  President  Washington.  Their  inti- 
macy was  long  remembered  by  those  who  witnessed  it. 
It  is  not  a  great  many  years  since  a  gentleman,  going 
to  congress  from  New  Hampshire,  was  asked  by  one  of 
the  old  officers  of  the  house  of  representatives,  who 
had  removed  with  the  government  from  Philadelphia 
to  Washington,  whether  he  knew  Mr.  Smith,  add- 
ing :  '  I  remember  him  well  in  the  time  of  President 
Washington,  always  coming  to  the  house  arm-in-arm 
with  Fisher  Ames.' " 

The  following  extracts,  in  addition  to  those  already 
given,  are  from  the  few  letters  that  have  been  pre- 
served out  of  the  many  that  Mr.  Ames  wrote  to  Mr. 
Smith,  but  they  will  serve  to  show  the  sort  of  inti- 
macy that  existed  between  them,  as  well  as  his  pecu- 
liar mode  of  feeling  and  writing. 

"  Boston,  March  13,  1798.     My  dear  friend  :  Do 


228  LIFE    OF    JUDGE    SMITH. 

not  wrong  me  so  much  as  to  suppose  that  my  long 
delay  in  answering  your  letter,  (so  full  of  wit  and 
friendship,)  arose  from  any  decline  of  my  regard.  I 
had  resolved  to  write  before  I  had  yours.  I  have 
been  busy,  sick,  and  stupid  for  four  weeks.  I  have 
been  stupefying  in  the  supreme  court  in  this  place, 
abusing  the  health  I  have  acquired,  and  marring  the 
prospect  of  its  future  improvement.  No  experience 
has  been  so  decisive  of  my  incompetence  to  any- 
thing that  excites,  or  requires  much  engagement  of 
mind,  as  that  which  I  have  lately  had.  Yet  I  am 
not  dead,  and  hope  to  inhale  health  with  the  air  and 
repose  that  next  week  offers  at  Dedham.  Fate  is 
heedless  of  my  prayers,  which  are,  to  be  in  a  situa- 
tion to  rear  pigs  and  calves,  and  feed  chickens  at 
Dedham,  the  world  forgetting,  by  the  world  forgot. 
Saving  always,  I  would  not  forget  my  friends,  nor 
have  them  forget  me  ;  saving  also  the  right,  at  all 
times,  to  rise  into  a  rage  against  the  politics  of  con- 
gress, and  a  few  more  savings,  all  equally  moderate 
and  reasonable.  In  serious  sadness,  I  wish  to  rest 
from  all  labor  of  the  mind  that  wears  out  the  body, 
and  I  would  do  it  if  I  could  eat  Indian  pudding 
without  drudging  in  court.  You,  I  hope,  enjoy  good 
fees,  cum  dignitate  —  happy  you  certainly  are,  and 
you  know  it.  I  have  heard  that  Mrs.  Smith  had  a 
long  illness  when  she  was  confined.  I  have  not 
been  able  to  learn  how  she  is  of  late,  and  I  will 
thank  you  to  offer  to  her  my  best  wishes  and  regards. 
I  salute  my  daughter-in-law,1  whose  merits  and  ac- 

1  At  this  time  six  months  old. 


LIFE    OF    JUDGE    SMITH.  229 

complishments  are  so  rare  and  excellent.  My  eldest 
son  is  at  Springfield,  and  has  there  cast  his  eyes  on  a 
young  lady  of  that  town,  but  my  second  son  is  at 
present  unengaged,  and  is  offered  to  you  as  the  party 
to  the  treaty." 

"  Boston,  November  22,  1798.  My  dear  friend  : 
Seeing  Mr.  Conner  in  an  office,  I  steal  a  moment 
from  the  din  of  the  supreme  court,  sitting  here,  to 
tell  you  I  am  alive  —  pretty  well  —  very  glad  to  hear 
from  you  and  your  better  half,  as  I  do  by  Mr.  Con- 
ner. Write  to  me,  and  kiss  my  daughter-in-law,  the 
princess.  Her  future  spouse  is  a  fine  fat  boy,  as 
ragged  and  saucy  as  any  democrat  in  Portsmouth. 
You  have  none  in  Exeter.  They  abound  in  Ded- 
ham,  though  the  liberty  pole  is  down.  Nelson  has 
beaten  the  French  fleet.  Do  not  grieve  for  that. 
What  are  we  to  do  ?  The  devil  of  sedition  is  im- 
mortal, and  we,  the  saints,  have  an  endless  struggle 
to  maintain  with  him.  Your  state  is  free  enough 
from  his  imps  and  influence,  to  give  joy  and  cour- 
age to  two  Langdons.  I  really  wish  to  see  you  and 
Mrs.  Smith.  God  bless  you.  Yours." 

"  Dedham,  February  16,  1801.  My  good  friend  : 
It  is  bold  in  you,  sinner  as  you  are,  to  ask  anything 
of  me.  You  did  not  answer  my  letter  about  writ- 
ing to  Ben  Bourne,  nor  a  former  letter,  nor  those 
letters  I  did  not  write,  but  which  you  knew  I  had 
regard  enough  for  you  to  write.  I  have  your  judge- 
letter  ;  and  with  all  these  demerits  unatoned,  I  wrote 
for  you  to  Dexter,  requesting  him  to  show  it  to  Mar- 
shall, and  to  do  all  that  he  can  possibly  do  for  you.  I 
heap  coals  of  fire  on  your  unworthy  head.  But  I  will 


230  LIFE    OF    JUDGE    SMITH. 

not  allow  my  rage  to  proceed  any  further  ;  on  the 
contrary,  I  thank  you  for  early  asking  my  influence, 
which,  as  one  of  the  Essex  junto,  you  know  is  great, 
in  favor  of  your  appointment.  I  did  not  write  to 
Mr.  Adams,  which  piece  of  neglect  he  will  excuse, 
and  I  hope  you  will.  I  have  read,  and  I  admire,  his 
book.  And  if  you  will  write  a  great  book  on  ten- 
ures, as  you  promised,  I  will  buy  it,  and,  if  possi- 
ble, read  it.  I  am  your  friend,  and  will  exert  myself, 
you  see,  to  serve  you.  Seriously,  I  wish  you  a 
judge,  though  you  have  not  gravity.  I  wish  to  see 
you,  to  give  you  pudding  in  my  house,  and  to  tell 
you  with  the  warmth  of  feeling  of  1796,  that  I  am. 
court  sitting,  very  busy,  your  friend,  &c." 

The  letter  from  which  the  following  is  taken,  was 
written  soon  after  the  United  States'  circuit  court  was 
abolished. 

"  The  second  French,  and  first  American  revo- 
lution, is  now  commencing,  or  rather  has  advanced 
two  sessions  of  the  national  assembly  almost,  for 
the  message  will  decide  and  do  the  work  of  the 
pending  session.  To  demolish  banks  and  funds,  not 
directly,  but  under  plausible  pretexts,  all  false  and 
cheating,  all  founded  on  experienced  state  policy, 
will  be  the  first  act,  though  the  death-blow  may  not 
be  given  to  either  of  them  till  the  fifth,  which  will 
be  three  or  five  years  later.  To  amend  the  constitu- 
tion, and  give  to  Virginia  the  power  to  reign  over  us, 
is  the  next  step.  To  do  this,  new  activity  will  be 
used  to  raise  and  strengthen  the  factions  in  each 
state,  and  to  drill  and  equip  them  as  subs  to  Vir- 
ginia. The  newspapers  will  lie  and  declaim  as  usual. 


LIFE    OF   JUDGE    SMITH.  231 

and  more  than  usual.  Unprinted  lies  will  be  spread 
abroad,  carefully  steering  off  from  post-roads  and 
offices,  as  pedlars  carry  their  packs  far  out  of  the 
way  of  large  shops.  Emissaries,  such  as  David 
Brown  was,  will  be  pedestrian  and  equestrian  car- 
riers of  the  popular  mail.  This  is  doing  in  all  the 
obscure  parts  of  New  England,  and  the  spirit  of  New 
England  will  be  as  much  perverted  soon,  as  it  is 
flattered  now.  Even  Connecticut,  so  ardent  in  fed- 
eralism, will  decline  from  her  high  station,  and 
learn  politics  of  Abraham  Bishop.  I  am  serious  — 
a  party  inactive  is  half-conquered.  The  feds  main- 
tain twenty  opinions,  the  best  of  which  is  quite 
enough  to  ruin  any  party.  '  Let  the  people  run  them- 
selves out  of  breath  —  all  will  come  right.  There 
is  no  occasion  for  us  to  do  anything.'  Others  say, 
'  we  despair,  nothing  can  be  done  with  effect.'  Not 
unfrequently  the  same  persons  maintain  both  opinions. 
"  Let  us  be  precise  in  deciding  our  object  :  first,, 
negatively  ;  it  is  not  the  regaining  of  the  supreme 
power.  The  end  is,  security  against  the  approach- 
ing danger  —  or  the  best  security,  if  not  perfect, 
that  is  attainable.  What  are  the  means  ?  Not 
indispensably  that  we  should  again  have  A  majority  ; 
it  is  enough  to  have  a  strong  minority.  That  minor- 
ity need  not  be  very  numerous,  but  it  should  be 
powerful  in  talents,  union,  energy  and  zeal.  It 
should  see  far,  and  act  soon.  At  this  moment  we 
actually  hold  sway  in  three  of  the  New  England 
states.  Vermont  has  a  good  governor,  and  many 
good  feds — almost  one  half  the  legislature.  Rhode 
Island  should  be  wrong,  and  lend  the  dirty  mantle 


232  LIFE    OF   JUDGE    SMITH. 

of  its  infamy  to  the  nakedness  of  sans  culotism. 
New  Jersey  and  New  York  are  not  hopeless.  Dela- 
ware and  Maryland  are  not  yet  as  much  emptied 
of  federalism  as  Pennsylvania  is.  Say  little  of  the 
more  southern  states,  though  federalism  sprouts  in 
all  of  them  —  it  is,  I  own,  however,  with  such  a 
sickly  yellow  vegetation,  as  the  potatoes  show  in 
winter  in  a  too  warm  cellar.  Now  sum  up  the  forces, 
and  surely  we  are  not  to  despair.  We  have  a  strong 
minority  in  numbers  ;  of  talents,  enough  ;  of  zeal, 
little,  but  more  may  be  excited  ;  and  the  approach- 
ing danger,  if  duly  represented,  would  excite  it  all. 
Self-defence  exacts  from  us  a  union  closer  than  ever, 
and  supplies  to  our  party  the  energy  that  party  alone 
possesses  —  an  energy  that  is  inconsistent  with  lan- 
guor or  inaction  in  the  chief  men  who  inspire  and 
guide  it. 

"  As  the  newspapers  greatly  influence  public  opin- 
ion, and  that  controls  everything  else,  it  is  not  only 
important,  but  absolutely  essential,  that  these  should 
be  used  with  more  effect  than  ever.  Let  all  federal 
papers  be  kept  up,  as  high  as  at  present.  But  let  a 
combination  of  the  able  men  throughout  New  Eng- 
land be  made,  to  supply  some  one  gazette  with  such 
materials  of  wit,  learning,  and  good  sense,  as  will 
make  that  superior  to  anything  ever  known  in  our 
country,  or  in  any  other,  except  the  English  Anti- 
Jacobin,  in  1797  and  1798.  To  pretend  to  supply 
with  such  materials  twenty  federal  papers,  is  absurd 
and  impracticable.  But  instead  of  educated  printers, 
shop-boys  and  raw  schoolmasters  being,  as  at  present, 
the  chief  instructers  in  politics,  let  the  interests  of 


LIFE    OF   JUDGE    SMITH.  233 

the  country  be  explained  and  asserted  by  able  men, 
who  have  had  concern  in  the  transaction  of  affairs, 
who  understand  those  interests,  and  who  will,  and 
ever  will  when  they  try,  produce  a  deep  national 
impression.  The  pen  will  govern,  till  the  resort  is 
to  the  sword,  and  even  then  ink  is  of  some  import- 
ance, and  every  nation  at  war  thinks  it  needful  to 
shed  a  great  deal  of  it.  As  matters  are  actually 
arranged,  the  Palladium  must  be  that  paper  ;  it  must 
have,  it  must  have  by  requisition,  the  contributions 
of  the  mind  from  those  who  are  rich  in  that  sort  of 
treasure.  One  or  two  of  that  gazette  ought  to  be 
crowded  into  every  small  town,  and  more  into  larger 
towns  throughout  New  England.  It  must  be  so 
supplied  as  to  need  no  helps  in  money,  but  to  force 
its  own  progressively  increasing  circulation.  It  should 
clearly  and  aptly  state  the  merits  of  every  question, 
tell  every  inquirer  exactly  what  he  wants  to  know 
about  the  public  business,  and  in  the  manner  that 
will  impress  him  —  in  the  manner  that  will  confound 
and  disarm  jacobin  liars.  The  principles,  the  cir- 
cumstances, the  effects  of  measures  should  be  un- 
folded, summarily  for  the  most  part,  but  often  by 
profound  investigation  and  close  argument.  Busi- 
ness paragraphs  should  be  short,  clear,  and  frequent. 
Occasional  essays  should  appear,  to  examine  specu- 
lative democratic  notions,  which  yet  prevail,  and 
almost  all  of  which  are  either  false  or  pernicious, 
but  often  mischievous  conclusions  from  admitted  pre- 
mises. Wit  and  satire  should  flash  like  the  electrical 
fire,  but  the  Palladium  should  be  fastidiously  polite 
and  well  bred.  It  should  whip  jacobins  as  a  gen- 
20* 


234  LIFE    OF    JUDGE    SMITH. 

tleman  would  a  chimney-sweeper,  at  arms  length, 
and  keeping  aloof  from  his  soot.  By  avoiding 
coarse  vulgar  phrases,  it  would  conciliate  esteem, 
and  appear  with  an  unusual  dignity  for  a  newspaper 
being. 

"  Foreign  news  should  be  skilfully  exhibited,  not 
in  the  jumbled  map  that  is  usual.  Literature  de- 
mands the  review  of  books,  and  especially  of  all 
newspapers,  so  far  as  their  general  scope  or  any  re- 
markable performances  require  it.  Agriculture  should 
have  a  share,  once  a  week  at  least,  of  the  paper. 
Morals,  manners,  schools,  and  such  disquisitions  as 
general  knowledge  would  supply,  should  be  furnished 
with  regularity.  And  for  all  these  labors,  various 
classes  of  able  men  should  be  engaged  to  supply  these 
various  departments.  But  for  the  superintendence 
and  principal  conduct  of  the  paper,  only  a  few  should 
be  selected,  and  the  others  should  hold  themselves  as 
a  body  of  reserve,  to  step  in  fresh  when  the  front- 
rank  grows  weary.  Only  six  able  men  in  the  differ- 
ent branches  of  the  undertaking  —  I  mean  six  in  the 
whole  —  would  secure  its  success.  McFingal  Trum- 
bull,  I  hope,  would  be  one,  as  he  is  Hermes  redivivus. 
Will  you  think  of  these  things  ?  Will  you  make 
these  ideas  known  in  confidence  to  Governor  Gilman 
and  Mr.  Peabody  ?  Will  you  contribute  with  your 
pen  to  such  discussions  of  law  or  constitution,  or 
such  pleasantries  as  you  can  easily  forward  to  War- 
ren Button,  Esq.  ?  Will  you  spread  these  opinions 
among  your  leading  good  men,  and  hasten  their  de- 
liberate judgment  on  the  only  means  to  save  our 
country  ?  All  this  being  done,  and  well  done  in 


LIFE     OF     JUDGE     SMITH.  235 

every  state,  then  let  the  building  up  the  state  govern- 
ments be  considered  an  important  federal  object. 
Let  state  justice  be  made  stable  and  effective.  Let 
the  first  men  be  persuaded  to  take  places  in  the  state 
assemblies.  All  this  must  be  done,  or  all  will  be  in 
confusion,  and  that  speedily.  Federalism  cannot  be 
lost  or  decline  much  lower,  without  losing  all.  For 
though  new  parties  would  succeed  federal  and  ja- 
cobin, yet  the  extinction  of  federalism  would  be 
followed  by  the  ruin  of  the  wise  and  good.  The 
only  parties  that  would  rise  up  afterwards,  will  be  the 
subdivisions  of  the  victors  —  the  robbers  quarreling 
about  their  plunder  —  all  wicked.  Despondency, 
inaction,  democratic  sanguine  notions,  or  federal  de- 
spair, are  to  be  renounced.  I  write  as  fast  as  I  can, 
and  am  in  a  hurry  to  get  done.  Now  you  may  talk, 
for  I  require  no  more  of  your  attention.  Your  affec- 
tionate friend.  F.  A." 

Few  men  have  been  more  happy  in  their  domestic 
relations,  than  Judge  Smith.  His  children,  one 
daughter  and  two  sons,  were  all  children  of  unusual 
interest  and  promise.  His  letters  to  his  wife  are  full 
of  considerate  tenderness,  and  the  allusions  to  their 
little  ones  show  how  fondly  the  pleasant  images  of 
home  were  cherished  by  him,  when  occupied  by  his 
official  duties.  "  Hopkinton,  9th  May,  1803.  I 
wish  I  could  spend  the  day  with  you  and  your  little 
tribe.  Instead  of  you  I  have  Wingate  ;  instead  of 
Ariana  and  William,  the  plaintiff  and  defendant; 
instead  of  Jeremiah,  sweet  innocent  creature,  lying 
witnesses  ;  for  I  am  in  the  midst  of  a  cause.  If  I 
thought  the  said  Ariana,  William  and  Jeremiah  would 


236  LIFE     OF     JUDGE     SMITH. 

resemble  any  of  the  three  hundred  people  now  before 
me,  excepting  some  eight  or  ten,  it  would  make  me 
very  sad." 

"Keene,  22d  October,  1803.  I  am  really  sorry 
for  my  friend  Gordon.  Husband  and  wife  should 
always  die  together.  But  what  puts  dying  in  my 
head  ?  May  it  be  far  away.  And  may  it  be  away 
from  our  little  prattlers  ;  may  they  long  prattle,  and 
may  some  of  the  bar,  who  now  prattle,  prattle  no 
more.  The  jury,  I  see,  most  heartily  join  me  in  that 
prayer." 

"Haverhill,  llth  October,  1805.  My  dearest 
wife :  Mr.  Adams  unexpectedly  gives  me  an  oppor- 
tunity of  writing  to  you.  He  does  not  call  you  to 
my  recollection.  I  have  neither  forgot  you  nor  yours, 
many  hours,  since  I  parted  from  you  a  fortnight  ago 
yesterday.  I  have  been  much  of  my  time  alone,  and 
part  of  the  time  in  a  dreary  wilderness,  and  you  have 
accompanied  me  in  ascending  and  descending  the 
White  Hills,  which  are  sublime  enough  to  merit  the 
name  of  mountains.  They  put  my  old  acquaintance, 
(I  believe  I  may  say  my  old  friend,)  the  grand  Mo- 
nadnock,  far  into  the  back  ground.  They  are  very 
lofty  and  very  numerous  ;  and  though  they  sink  un- 
der Carrigain's  description,  they  are  really  very  sub- 
lime. You  and  I  should  have  enjoyed  the  prospect 
exceedingly.  1  can't  help  thinking  that  people  bred 
on  mountains  or  used  to  them,  have  more  genius  and 
more  understanding  than  the  inhabitants  of  the  low 
.  country,  such  as  *****,  &,c.  Last  evening,  I  heard 
from  you,  in  a  letter  from  Colonel  Rogers.  He  only 
says  you  were  better  than  when  I  left  you,  and 


LIFE     OF     JUDGE     SMITH.  237 

the  rest  of  the  family  well.  I  wish  he  could  have 
said  the  latter  of  you  ;  however,  it  is  something  to  be 
better.  If  you  will  promise  to  continue  growing  bet- 
ter, I  shall  almost  find  it  in  my  heart  to  forgive  you  for 
not  being  well.  Seriously,  my  dearest  love,  there  is 
nothing  I  so  much  desire  in  this  world  as  your  health 
and  happiness ;  and  this  I  am  sure  you  can  say  in 
return  of  your  husband.  Heaven  grant  our  mutual 
prayers  may  be  heard,  and  as  to  everything  else,  I 
will  be  resigned,  and  almost  indifferent.  I  am  sorry 
you  could  not  write  when  Colonel  Rogers  did.  I 
am  sure  you  could  not,  or  you  would  have  written. 
It  was  something  to  receive  my  old  surtout  immedi- 
ately from  home  ;  I  was  going  to  say  immediately 
from  your  hand.  It  would  add  much  to  its  value,  if 
this  were  the  case.  Mr.  Adams  sets  out  immediately 
for  home,  and  yet  I  do  not  wish  to  accompany  him. 
The  business  he  goes  on  is  indeed  unpleasant.  You 
have,  no  doubt,  heard  all  about  it.  We  despise 
many,  almost  hate  some,  and  love  a  few  of  our  fellow 
mortals,  and  yet  we  are  very  dependent  on  this  same 
motley  crew,  and  the  worst  of  them  can  make  us 
very  miserable.  Is  it  not  a  matter  of  grateful  recol- 
lection, that,  among  all  the  rogues  with  whom  I  have 
been  professionally  and  officially  concerned,  no  one 
has  done  us  any  harm  ?  I  am  almost  ready  to  say, 
God  bless  them.  I  forgot  to  tell  you  that  I  am  very 
well,  and  have  been  vastly  well  ever  since  I  left  Ex- 
eter. If  this  should  continue  to  be  the  case,  don't 
you  apprehend  I  shall  set  my  face  reluctantly  towards 
the  east  ?  If  you  will  meet  me  at  Amherst,  I  think 
you  will  have  no  great  difficulty  in  dragging  me  to 


238  LIFE     OF     JUDGE     SMITH. 

Ariana,  William  and  Jeremiah.  Give  my  love  to 
them  and  the  girl,  and  believe  me  entirely  your  Jere- 
miah Smith." 

In  another  letter  he  said  :   "  Our  friend  died  this 
morning  at  five  o'clock.     As  she  suffered  greatly  the 
last  two  days,  I  was  glad  to  hear  that  she  was  re- 
lieved.     The  family   suffered   extremely."      A  few 
days  later  he  said :  "  We  had  a  great  funeral  —  large 
company,  much  grief,  and  the  mourners  well  dressed. 
Much  time  had   been   taken  for  the  purpose.      O 
pride,  pride  !  thou  minglest  with  our  sorrows  as  well 
as  our  joys.  .....     I  long  very  much  to  see  you 

and  the  two  sweet  little  fellows  that  are  prattling  at 
your  side.  God  bless  you,  my  dearest  love." 

"  Amherst,  Tuesday,  twelve  o'clock,  November  4, 
1806.  I  beg,  my  dearest  love,  that  you  would  attend 
particularly  to  the  hour  mentioned  above,  (twelve 
o'clock,)  because  the  few  lines  I  sent  by  Mr.  Spar- 
hawk,  were  dated  at  eleven.  You  may  be  sure  I  had 
not  then  read  your  sweet  letter,  by  that  lump  of  earth, 
Dr.  Tenney.  Strange  that  a  letter  carried  in  his 
pocket-book  thirty  hours,  had  not  lost  all  its  spirit,  and 
what  is  infinitely  dearer  to  me,  all  its  love  !  I  have  a 
great  mind  that  he  should  lose  his  cause.  I  perceive 
that  it  was  his  fault  that  you  are  not  now  with  me. 
Can  you  conceive  of  my  disappointment,  when  he  pre- 
sented himself  at  my  lodgings,  and  alone,  just  as  I  was 
going  to  court  this  morning  ?  Judge  Wingate  had 
informed  Mr.  Charles  H.  Atherton,  on  his  arrival, 
and  Mr.  A.  informed  me  that  Dr.  Tenney  would  be 
up  in  the  evening,  with  Mrs.  Smith.  This  was  un- 
expected happiness,  and  therefore  made  the  greater 


LIFE    OF    JUDGE    SMITH.  239 

impression.  I  began  to  love  the  doctor,  because  he 
was  to  be  so  near  you.  I  can't  describe  to  you  how 
delighted  I  was  at  my  prospects.  Nine  o'clock 
came,  and  ten,  and  eleven,  and  I  retired  to  my  soli- 
tary cell,  not  to  sleep  —  that  was  impossible  for 
many  hours,  but  to  think  what  time  you  set  out  — 
how  you  parted  with  the  children — what  accidents 
befell  .you  by  the  way  —  where  you  lodged,  and  at 
what  hour  I  should  see  the  chaise  arrive  this  morn- 
ing. If  the  doctor  is  satisfied  with  the  reception  I 
gave  him,  he  is  more  insensible  than  you  can  con- 
ceive of.  I  neither  inquired  for  his  health,  nor  that 
of  his  wife,  but  where  you  were.  He  said  he  could 
not  procure  a  carriage  strong  enough.  Everything 
with  him  goes  by  weight,  and  so,  I  dare  say,  he 
thought  of  you  as  of  one  hundred  and  fifty  pounds 
of  lead.  Well,  surely  we  are  differently  made,  and 
I  hope  and  trust  of  different  materials.  I  shall  hate 
and  despise  Exeter,  the  longest  day  I  live,  for  having 
weak  horses  and  slender  carriages.  But  I  will  not 
be  deprived  of  what  has  thus  got  possession  of  my 
whole  heart.  I  will  send  my  horse  and  chaise  for 
you,  and  you  must  be  with  me  ;  I  shall  be  sick  if 
you  do  not.  P.  S.  —  Dr.  Tenney  has  just  called  on 
me,  (two  o'clock,)  and  makes  bad  worse.  He  says 
you  sent  word  to  him  on  Saturday,  to  know  how  he 
was  coming  ;  and  he  sent  back  word  that  he  would 
carry  any  letter  or  package  to  me.  It  seems  it  never 
occurred  to  his  feeling  heart,  that  the  best  thing  he 
could  bring  me  was  you,  and  that  you  could  have 
any  wish  to  come  and  comfort  me,  in  my  labors 
here." 


240  LIFE     OF     JUDGE     SMITH. 

"  Wednesday,  two  o'clock,  P.  M.  I  have  this  mo- 
ment received  at  the  post-office  your  letter  of  yester- 
day, and  am  as  happy  as  happy  can  be,  at  the  pros- 
pect of  seeing  you  Saturday  night.  What  a  charm- 
ing conclusion  to  a  troublesome  week.  I  had  just 
made  my  arrangements  to  send  for  you  to-morrow. 
I  had  engaged  a  horse,  and  intended  this  afternoon 
to  propose  to  William  Gordon  to  be  your  gallant. 
But  Mr.  Mason's  politeness  makes  it  unnecessary  to 
send.  You  will  come  directly  to  my  lodgings,  which 
are  very  good.  There  is  no  person  with  me,  and 
everything  is  as  it  should  be.  I  called  on  Mrs. 
Mason  last  evening,  and  she  expressed  a  strong  wish 
that  you  might  come  with  her  husband.  That  was 
very  good  in  her,  was  it  not  ?  " 

"  Charlestown,  N.  H.,  May  14,  1808.  I  never 
can  express,  in  terms  strong  enough,  how  much  I  am 
delighted  with  your  letter  by  Mr.  Stevens.  If  you 
will  promise  to  write  me  such  letters,  I  will  go  from 
home  half  the  time  at  least.  Let  us  grow  old  to- 
gether, and  let  our  path  of  love,  like  the  path  of  the 
just,  shine  more  and  more  to  the  perfect  day." 

"  Haverhill,  N.  H.,  October  13,  1808.  I  cannot 
yet  say  when  we  shall  adjourn  ;  but  the  better  opin- 
ion is,  that  Saturday  night  will  end  the  turmoil  of 
Haverhill  court,  in  which  case  you  will  be  so  good 
as  to  prepare  for  me  a  smile  by  Wednesday.  I  am 
very  well,  and  in  very  good  spirits,  because  very 
busy,  and  the  business  does  not  fatigue  me,  as  was 
the  case  at  the  Exeter  court." 

The  day  after  these  lines  were  written,  Judge 
Smith's  family  was  visited  by  a  most  afflictive  event, 


LIFE    OF    JUDGE    SMITH.  241 

which  is  thus  described  in  a  letter  of  business,  dated 
the  31st  of  October:  "  I  mentioned  my  return  from 
the  circuit  ten  days  ago.  It  was  the  first  painful 
visit  to  my  own  home.  Our  dear  little  Jeremiah,  in 
his  seventh  year,  was  drowned  on  the  14th  instant. 
At  play  with  a  boy  of  his  own  age,  he  accidentally 
fell  from  a  bridge,  and,  before  any  assistance  could 
be  had,  was  past  recovery.  I  was  at  the  distance  of 
one  hundred  and  twenty  miles,  but  arrived  in  season 
to  attend  the  funeral.  I  will  not  attempt  to  paint 
his  mother's  distress  ;  and  his  aunt  P.'s  '  sufferings 
are,  I  believe,  nearly  as  great.  He  was  her  favorite 
from  infancy.  I  hope  a  similar  calamity  may  never 
befall  you  or  yours." 

To  the  Rev.  Mr.  M'Clary,  November  2,  1808. 
"  Reverend  and  dear  sir :  According  to  the  request 
expressed  in  your  letter  of  the  31st  ult.  I  have  made 
such  a  certificate  as  you  desire  on  the  deed,  and  sin- 
cerely hope  it  will  answer  the  purpose  intended.  I 
am  sorry  to  hear  of  your  indisposition,  and  hope  it  will 
be  of  short  continuance.  Your  kind  sympathy  with 
Mrs.  Smith  and  myself,  on  the  loss  of  our  dear  child, 
as  an  evidence  of  your  friendly  regard,  is  consoling. 
I  hope  we  are  entirely  submissive  to  the  divine  will, 
in  this  sore  breach  on  our  little  circle,  and  only  soli- 
citous to  improve  the  afflicting  dispensation  as  we 
ought." 

Judge  Smith  almost  immediately  set  out  again  on 
his  judicial  duties,  but  with  feelings  tender  and  sub- 


1  Two  of  Mrs.  Smith's    sisters  were    in  Judge  Smith's   family  ten 
years. 

21 


242  LIFE    OF    JUDGE    SMITH. 

dued.  He  was  not  a  man  to  talk  of  his  emotions ; 
but  those  who  know  how  to  read  what  is  expressed 
by  silence,  as  well  as  by  words,  will  see  how  much  is 
implied  in  the  following  short  notes  to  his  wife. 

"  Amherst,  November  11,  1808.  Judge  Win- 
gate  has  just  taken  his  seat,  and  brings  me  no  letter 
from  you.  Captain  Dana  has  not  arrived,  and  I  am 
about  to  set  out  for  Peterborough.  Judge  Liver- 
more  is  very  good,  and  agrees  to  stay  till  Monday 

morning  ;  so  that  I  can  spend  two  days  at  P .  I 

am  sorry  to  go  further  from  you  without  hearing. 
Never  was  there  a  time  when  I  had  so  great  anxiety 
to  hear  from  you.  Mrs.  Mason  I  have  just  seen, 
and  it  seems  she  but  just  saw  you.  But  I  will  sup- 
pose you  well,  and  your  sister  better,  because  with  all 
my  heart  I  desire  it." 

"  P.  S.  —  Captain  Dana  has  arrived,  and  brought 
me  your  letter.  I  have  read  it  with  more  interest 
than  I  ever  read  anything  from  you.  I  did  not  ex- 
pect you  would  now  write,  as  you  would  have  done 
three  months  ago.  I  perceive  our  friend  M'Clary 
soothed  your  feelings.  I  wish  he  could  visit  you 
every  day  till  my  return.  You  are  not  well  ;  do, 
my  dearest  wife,  take  care  of  your  precious  health. 
Do  not  add  to  my  misfortunes  ;  for  my  sake  be  well. 
Your  mind  will  gradually  recover  its  tone,  and  we 
shall  —  our  hearts  will,  be  made  better.  God  bless 
you,  my  dearest  wife.  So  prays  your  ever  affection- 
ate husband,  J.  S." 

"  Amherst,  November  14,  1808.  Monday  even- 
ing. My  dearest  wife  :  Captain  D.  is  so  obliging  as 
to  call,  and  offer  to  carry  a  letter.  I  can't  omit 


LIFE    OF   JUDGE    SMITH.  243 

writing,  though  I  expect  to  be  with  you  Thursday 
evening  or  Friday  noon.  What  would  I  not  give  to 
have  you  with  me  this  night !  Mrs.  Spalding  is  all 
goodness,  and  you  would  be  charmed  with  her  ;  but 
the  days  are  long,  and  the  nights  longer.  I  returned 
this  morning  from  Peterborough.  They  are  all  well ; 
but  I  did  not  enjoy  myself.  I  never  took  so  little 
interest  in  business  or  in  friends,  as  at  this  circuit. 
Judge  Farrar  is  just  gone  ;  he  spent  the  evening  with 
me.  It  is  now  past  nine.  He  made  the  kindest  in- 
quiries after  you.  God  bless  you,  my  sweet  wife." 

It  was  a  sore  and  lasting  grief,  which  thus  robbed 
business  and  friendship  of  their  accustomed  interest, 
making  the  days  "  long,"  and  the  nights  "  longer." 
It  was  the  first  really  severe  calamity  that  Judge 
Smith  had  known.  His  affections  and  .his  pride  were 
bound  up  in  the  "  dear  child  "  that,  with  his  name, 
was  supposed  also  in  his  character  to  bear  no  small 
resemblance  to  himself.  The  world  could  never 
again  become  to  him  what  it  was  before  ;  a  change 
had  passed  over  it ;  his  feelings  were  chastened  ;  and 
if  no  great  and  sudden  revolution  was  wrought,  his 
character  was  deepened  ;  the  day-spring  of  a  brighter 
hope  began,  and  yielding,  as  he  did,  with  entire  sub- 
mission to  the  divine  will,  his  heart  was  made  better, 
and  the  way  prepared  for  patience,  through  other  and 
heavier  trials,  to  have  its  perfect  work. 


CHAPTER    VIII. 

1809  —  1810. 

GOVERNOR    OF    NEW    HAMPSHIRE. 

/ 

IN  the  spring  of  1809,  Mr.  Smith  was  chosen  gov- 
ernor of  New  Hampshire.  His  interest  in  politics, 
as  has  been  already  observed,  had  been  gradually 
diminishing,  and  for  several  years  his  papers  contain 
scarcely  a  reference  to  political  events.  His  judicial 
office  gave  him  occupation  enough,  and  of  the  kind 
he  best  liked,  while  it  opened  to  him  a  field  of  use- 
fulness and  honor  that  might  satisfy  his  ambition. 
Why  then  should  he  consent  to  be  held  up  as  a  can- 
didate for  any  political  office,  especially  for  one  less 
lucrative,  and,  in  the  judgment  of  every  wise  man, 
less  honorable  than  the  office  he  already  held  ?  "  In 
accepting  it,"  he  said,  "  I  have  consulted  neither  my 
interest  nor  inclination.  The  last  seven  years  of  my 
life  have  been  entirely  devoted  to  the  office  I  have 
just  vacated.  In  that  office,  congenial  with  my  hab- 
its and  pursuits,  and  the  duties  of  which  had  in  some 
measure  become  familiar  by  practice,  I  began  to  in- 
dulge the  hope,  if  my  life  should  be  spared  and  health 


LIFE     OF     JUDGE     SMITH.  245 

restored,  that  I  might  realize  in  some  small  degree, 
the  wish  always  nearest  my  heart,  of  being  useful  to 
my  fellow-citizens.  But  it  has  always  been  my  be- 
lief, and  I  am  not  sensible  that  my  practice  has  been 
at  variance  with  it,  that,  in  a  government  like  ours, 
every  citizen  is  at  the  disposal  of  his  country  ;  and 
though  no  wise  man  will  ever  aspire  to  office,  yet  no 
dutiful  citizen  will  feel  himself  at  liberty  to  decline 
its  labors  and  its  cares,  at  the  call  of  his  country. 
He  will  consider  his  fellow-citizens  as  the  best  judges 
in  what  way  he  can  best  serve  them,  and  it  will  be 
his  highest  ambition  to  merit  their  approbation  by  a 
diligent  and  faithful  discharge  of  duty." 

The  reason  here  given  is  strengthened  by  the  fact, 
that  in  the  whole  matter  he  was  entirely  passive.  I 
cannot  learn  that  he  ever  consented  to  be  a  candidate 
except  by  not  formally  declining.  He  went  steadily 
on  in  the  performance  of  his  judicial  duties,  taking 
no  part  in  the  election,  and  probably  as  indifferent  to 
the  result  as  any  man  in  the  state. 

The  reason  above  given,  however,  does  not  fully 
meet  the  case.  The  great  object  of  Mr.  Smith's 
public  life  had  been  a  better  administration  of  justice. 
To  this  he  had  chiefly  devoted  himself  while  in  the 
state  legislature.  As  a  judge  he  had  introduced  a 
more  orderly  practice,  and  prepared  the  way  for  a 
more  strict  and  exact  administration  of  the  laws. 
But  the  laws  themselves  were  exceedingly  defective, 
and  he  considered  that  it  was  only  by  establishing 
the  judiciary  on  a  more  liberal  foundation,  and  re- 
forming the  whole  body  of  statute  laws,  that  the  juris- 
prudence of  the  state  could  be  made  as  perfect  as  the 

21* 


246  LIFE     OF     JUDGE     SMltfl. 

lot  of  humanity  would  admit.  He  hoped  that  Mr. 
Mason  might  be  persuaded  to  succeed  him  on  the 
bench,  in  which  case  the  duties  of  the  office  would 
be  discharged  with  eminent  ability  and  impartiality  ; 
while  he,  in  his  new  capacity,  should  give  his  whole 
strength  to  the  improvement  of  the  laws,  and  thus 
introduce  into  the  executive  and  legislative,  what  he 
had  already  accomplished  with  such  remarkable  suc- 
cess in  the  judiciary  department.  Such  in  substance 
were  his  views,  as  explained  in  confidence  to  a  friend 
who  called  upon  him  before  the  election,  in  order  to 
dissuade  him  from  allowing  himself  to  be  a  candidate. 
But  in  each  and  every  respect  he  found  himself  dis- 
appointed and  deceived. 

He  was  chosen  by  so  small  a  majority  that  what- 
ever he  might  recommend  could  have  no  great  weight 
of  public  opinion  to  sustain  it.  He  was  elected  by 
a  political  party,  in  violent  party  times,  when  both 
those  who  supported  and  those  who  opposed  him 
were  more  intent  on  the  little  party  expedients  of  the 
day,  than  on  any  extended  system  of  legislation, 
which  might  look  to  the  permanent  advancement  of 
justice  and  the  well-being  of  society.  In  his  speech 
to  the  legislature,  the  14th  of  June,  1809,  the  judi- 
ciary was  almost  the  only  subject  which  he  particu- 
larly recommended.  "  I  cannot,"  he  says,  "  forbear 
calling  your  attention  in  a  particular  manner  to  the 
administration  of  justice,  and  recommending  this  most 
important  branch  of  civil  polity  to  your  protecting, 
fostering  care.  Next  to  the  power  of  religion,  a 
strict,  able  and  impartial  administration  of  justice  is 
the  best  security  of  morals.  It  is  indispensable  to  the 


LIFE     OF     JUDGE     SMITri.  24t 

peace,  happiness  and  good  order  of  society.  It  is  in 
vain  that  the  legislative  body  frame  .and  adopt  the 
wisest  and  the  best  system  of  laws,  if  the  interpreta- 
tion of  them  be  entrusted  to  incompetent  or  unskilful 
hands.  No  part  of  our  constitution  is  more  just  than 
the  declaration  that,  c  It  is  essential  to  the  preserva- 
tion of  the  rights  of  every  individual,  his  life,  liberty, 
property  and  character,  that  there  be  an  impartial 
interpretation  of  the  laws,  and  due  administration  of 
justice.'  But  this  declaration  of  rights  will  be  at- 
tended with  no  practical  advantage  to  our  citizens, 
unless  the  legislature  and  the  supreme  executive  give 
it  life  and  energy  by  the  due  exercise  of  their  respect- 
ive functions. 

"  It  is  not  sufficient  that  these  departments  abstain 
from  encroachments  on  the  judiciary.  Adequate 
provision  must  be  made  by  the  legislature  for  its  sup- 
port. Twenty  years'  attendance  on  courts  of  justice 
has  taught  me  something  of  the  importance  to  the 
community  of  an  able,  upright  and  independent  judi- 
ciary, and  nearly  nine  years'  experience  on  the  bench 
has  given  me  some  knowledge  of  the  perplexities, 
labor  and  great  responsibility  incident  to  the  office  of 
a  judge.  In  the  worst  constituted  judiciary,  able 
and  independent  judges  may  happen  to  be  found, 
but  such  are  not  to  be  expected.  Judges  will  gener- 
ally bear  an  exact  proportion  to  the  provision  made 
for  the  office.  A  long  and  continual  sacrifice  of  in- 
dividual interest  for  the  general  good,  ought  neither 
to  be  expected  nor  desired.  The  nature  of  man  must 
be  changed  before  institutions  built  on  the  presump- 
tive truth  of  such  a  principle  can  succeed.  It  would 


248  LIFE     OF     JUDGE     SMITH. 

be  a  reproach  to  our  state,  of  which  it  is  altogether 
undeserving,  to  suppose  that  it  wants  either  the  abil- 
ity to  make  a  suitable  establishment  for  this  all- 
important  department  of  government,  or  materials  for 
judges  such  as  the  constitution  contemplates.  When 
the  office  is  made  as  respectable  as  it  ought  to  be, 
the  emoluments  adequate  to  its  arduous  duties  and 
high  responsibility,  men  will  always  be  found  who 
will  cheerfully  devote  twenty  years  of  their  lives  in 
preparation  for  the  office,  and  the  residue  in  the  labo- 
rious and  faithful  discharge  of  its  arduous  duties.  I 
would  not  depreciate  the  value  of  a  spirit  of  patriot- 
ism which  leads  to  individual  sacrifices  and  sufferings 
for  the  public  good,  but  it  is  unreasonable  ,to  expect 
from  any  man  a  life  of  study  and  application,  the 
sacrifice  of  much  of  that  ease  and  comfort  every  man 
finds  in  the  bosom  of  his  family,  the  total  renuncia- 
tion of  all  other  means  of  acquiring  property,  without 
the  expectation  of  receiving  from  the  public  an  ade- 
quate reward  for  these  sacrifices  and  services.  With 
the  legislature,  then,  it  rests  to  determine  what  shall 
be  the  character  of  our  judiciary.  The  constitution 
requires  and  enjoins  that  it  should  be  as  perfect  as 
the  lot  of  humanity  will  admit.  Will  our  citizens  be 
content  with  one  less  perfect,  because  they  can  have 
it  for  a  less  price  ?  on  this  subject  will  they  be  satis- 
fied to  be  outdone  by  our  sister  states  ?  It  is  in  vain 
that  the  executive  possess  the  power  of  appoint- 
ment. It  is  but  the  power  of  inviting  to  a  seat  on 
the  bench  those  whose  learning,  ability  and  integrity 
qualify  them  for  the  employment.  But  will  such 
obey  the  call  if  the  provision  for  the  office  is  deemed 
inadequate  ? 


LIFE    OF    JUDGE    SMITH.  249 

"  To  me  it  would  be  a  source  of  great  regret  to  find 
this  office,  or  this  department  of  government,  subject 
to  the  revolutions  of  political  parties,  or  at  all  affected 
by  party  feelings.  All  parties  are  bound  to  unite  in 
a  subject  involving  in  it  everything  dear  to  all.  If 
the  time  should  ever  arrive  when  our  courts  of  justice 
shall  be  swayed  by  popular  clamor  and  popular  pre- 
judices, when  our  judges  shall  know  no  other  rule  of 
judgment  but  the  humor  of  the  times,  it  will  be  falsely 
said  that  men  are  tried  for  their  lives  and  fortunes ; 
they  will  live  by  chance,  and  enjoy  what  they  have  as 
the  wind  blows,  and  with  the  same  certainty.  As  far 
as  depends  on  me,  you  may  rest  assured,  that  no  con- 
siderations of  that  nature,  will  have  the  smallest  in- 
fluence on  such  appointments I  trust  you 

will  excuse  my  earnestness  on  this  subject.  I  feel  its 
importance.  It  lies  near  my  heart.  I  urge  my  senti- 
ments with  the  greater  freedom,  because  I  cannot,  I 
shall  not,  receive  the  smallest  benefit  from  the  best 
judicial  establishment,  except  in  common  with  my  fel- 
low-citizens. I  can  have  no  other  inducement  for 
what  I  recommend,  than  a  full  conviction  of  its  utility 
and  indispensable  necessity  to  the  honor  and  well- 
being  of  the  state.  I  am  not  conscious  of  a  wish  more 
sincere  than  that  of  seeing  the  place  I  now  leave  on 
the  bench,  filled  by  a  person  every  way  better  quali- 
fied for  his  station  than  I  could  pretend  to  be." 

Strange  as  it  may  seem,  these  remarks  so  true,  so 
important,  and  prepared  with  so  high  an  object,  were 
made,  above  everything  else,  the  means  of  bringing 
odium  upon  the  governor.  The  expression,  "  twenty 
years'  attendance  in  courts  of  justice,"  was  tortured 


250  LIFE    OF    JUDGE    SMITH. 

from  its  true  meaning,  and  made  in  the  democratic 
papers  a  hissing  and  a  by-word  against  him.  In  a 
series  of  articles '  written  with  much  adroitness  and 
ability,  and  supposed  to  be  by  an  old  friend  and  corres- 
pondent, the  changes  were  rung  upon  them  with  a 
disingenuousness  which  nothing  but  the  malevolence 
of  party  rage  could  palliate  or  excuse  ;  while  many  of 
the  federalists,  smitten  by  that  curse  of  all  political 
parties,  the  fear  of  offending  the  people,  and  looking, 
not  to  his  language,  but  to  the  popular  mind  for  the 
interpretation,  had  neither  the  wisdom  to  understand, 
nor  the  magnanimity  to  sustain  him.  Of  course,  his 
recommendation  had  no  influence  with  the  legislature, 
and  the  measures  nearest  his  heart  fell  to  the  ground, 
answering  no  other  purpose  than  to  make  him  un- 
popular with  the  people.  It  was  a  cause,  however, 
in  which  he  might  rejoice  to  be  counted  worthy  to  suf- 
fer shame,  and  in  reference  to  it,  he  might  have  em- 
ployed the  language  used  by  Edmund  Burke,  on  a 
similar  occasion.* 

As  another  instance  of  misrepresentation,  I  would 
refer  to  an  act  of  the  legislature,  appropriating  about 
thirty-five  hundred  dollars  for  the  erection  of  a  build- 
ing connected  with  the  medical  school  at  Hanover. 
Immediately  in  the  opposition  papers  the  cry  was 
raised  that,  by  this  measure,  the  governor  was  en- 

1  In  the  New  Hampshire  Patriot. 

*"  The  charges  against  me  are  all  of  one  kind;  that  I  have  pushed  the 
principles  of  general  justice  too  far  ;  further  than  a  cautious  policy  would 
warrant ;  further  than  the  opinions  of  many  would  go  along  with  me. 
In  every  accident  which  may  happen  through  life,  in  pain,  in  sorrow,  in 
depression  and  distress,  I  will  call  to  mind  this  accusation,  and  be  com- 
forted." 


LIFE    OF    JUDGE     SMITH.  251 

couraging  resurrectionists,  and  that  if  he  were  con- 
tinued in  office,  the  dead  would  not  be  permitted  to 
sleep  quietly  in  their  graves.  In  1832,  J.  S.  said  in 
a  lecture,  "  we  now  witness  what  I  never  expected  to 
see  below,  legislative  bodies  providing  subjects  for  ana- 
tomical dissections." 

In  his  judicial  appointments  he  succeeded  as  little 
to  his  mind.  As  no  adequate  provision  had  been 
made  for  it,  Mr.  Mason  could  not  accept  the  office 
of  chief  justice.  The  Hon.  Arthur  Livermore,  an 
associate  justice,  was  promoted  to  it,  which  left  still 
a  vacant  seat  upon  the  bench.  But  the  salary  was 
such  that  men  of  very  high  qualifications  would  not 
accept  it.  George  Sullivan,  Samuel  Bell  and  Caleb 
Ellis,  refused  to  be  nominated.  And  to  increase  the 
difficulty,  three  of  the  five '  councillors,  as  they  be- 
longed to  the  democratic  party,  would  permit  none 
but  a  man  of  their  own  party  to  be  selected.  In  a 
conversation  at  the  September  session  of  the  council, 
they  expressed  an  opinion  in  favor  of  Clifton  Clag- 
gett,  an  amiable,  honest  man,  I  believe,  but  wholly 
unfit  for  the  place,  more  especially  as  the  other  asso- 
ciate justice,  who  had  just  been  appointed,  was  a 
man  of  no  legal  education.  The  governor  expressed 
a  decided  opinion  against  him.  At  the  December 
session,  the  governor  requested  that  they  should  name 


i  The  councillors  were  Elijah  Hall,  Richard  Dame,  Samuel  Bell,  de- 
mocrats ;  Caleb  Ellis,  Benjamin  J.  Gilbert,  federalists.  My  statements 
here  are  drawn  from  minutes  taken  at  the  time  by  the  governor,  and 
compared  with  the  official  records  of  the  council,  in  examining  which,  I 
•was  greatly  assisted  by  the  obliging  attention  of  Mr.  Treadwell,  the 
secretary  of  state. 


LIFE     OF     JUDGE      SMITH. 


some  other  person,  but  they  did  not  feel  themselves 
at  liberty  to  agree  upon  any  other.  No  nomination 
was  made  ;  but  at  the  next  meeting  of  the  council  in 
February  1810,  after  the  governor  had  nominated  Mr. 
Vose,  Mr.  W.  H.  Woodward  and  Mr.  Moody,  with- 
out success,  the  council  named  Mr.  Plumer,  Mr.  Bell 
saying,  as  Mr.  Dame  had  formerly  done,  that  he  thought 
-his  abilities  good,  but  doubted  as  to  other  qualifica- 
tions. The  governor  expressed  no  opinion  of  his 
other  qualifications,  but  did  not  express  a  high  opinion 
of  his  law  knowledge.  A  majority  of  the  council  then 
agreed  upon  Jonathan  Steele,  and  the  governor  con- 
curred in  the  appointment  as  the  best  that,  under 
existing  circumstances,  could  be  made,  "  it  being,"  as 
he  said  in  a  letter  to  Judge  Livermore,  "  deemed  (by 
the  council)  more  important  that  the  court  should 
have  right  opinions  in  everything  else  than  of  law." 
It  is  easy  to  see  how  exceedingly  vexatious  these  pro- 
ceedings must  have  been,  and  how  completely,  in 
their  result,  they  must  have  dashed  to  the  ground  the 
anticipations  with  which  he  entered  upon  his  office. 
In  little  things,  oftentimes  more  annoying  than 
graver  matters,  the  tide  went  equally  against  him.  On 
his  return  from  Concord,  at  the  adjournment  of  the 
legislature,  a  cavalcade  went  out  from  Exeter  to  escort 
him  home.  They  met  him  in  the  midst  of  a  violent 
rain,  and  he  on  horseback  and  bare-headed,  was 
obliged  to  ride  half  a  mile  or  more,  till  his  very  boots 
were  filled  with  water.  In  the  awkwardness  and  con- 
fusion occasioned  by  his  untried  situation,  on  arriving 
at  his  house  he  was  said  to  have  forgotten  to  invite 
the  company  to  take  any  refreshments,  and  this  by 


LIFE    OF     JUDGE     SMITH.  253 

some  was  maliciously  attributed  to  his  fear  of  the  ex- 
pense, while  others  amused  themselves  by  ludicrous 
stories  of  Mrs.  Smith's  horror  at  seeing  her  carpets 
soiled  by  so  many  muddy  boots.  The  opposition 
newspapers,  of  course,  made  the  most  of  this,  and  the 
omitted  civility  was  held  up  as  such  an  instance  of  aris- 
tocratic meanness,  as  to  be  not  without  its  influence 
at  the  next  election. 

At  the  earnest  request  of  President  Wheelock,  go- 
vernor Smith  attended  the  commencement  at  Dart- 
mouth college.  He  was  met  at  Lebanon,  about  five 
mUes  distant,  by  a  very  large  number  of  gentlemen 
from  Hanover  and  the  neighboring  towns,  and  a  com- 
pany of  cavalry.  When  he  first  appeared  in  sight  of 
the  village,  "  his  approach  was  announced  by  the 
ringing  of  the  bell  and  the  firing  of  cannon.  When 
he  had  reached  the  square,  he  was  again  saluted  by 
three  heavy  discharges  of  cannon,  by  an  elegant  con- 
cert of  music,  and  especially  by  the  joyful  counte- 
nances of  a  numerous  company  of  spectators."  And 
"  this  manifestation  of  love  and  respect,"  adds  the 
newspaper  from  which  I  have  borrowed  the  account, 
"  was  from  gentlemen  of  the  first  respectability,  with- 
out any  distinction  of  political  party."  These  atten- 
tions were  undoubtedly  gratifying  to  his  feelings,  al- 
though, in  his  sober  judgment,  he  attached  to  them  as 
little  value,  as  those  who  profess  to  despise  them  most. 
Whatever  satisfaction  his  visit  may  have  given  in  other 
quarters,  it  seems  not  to  have  left  a  pleasant  impres- 
sion on  the  mind  of  President  Wheelock.1 

1  Several  little  incidents  occurred,  which  the  governor  used  afterwards 


254  LIFE    OF    JUDGE    SMITH. 

The  particular  act  which  probably  wounded  Mr. 
Smith  most  severely  at  the  time,  came  from  his  polit- 
ical friends.  Seeing,  as  they  thought,  the  tide  of  po- 
pular favor  turning  against  him,  and  supposing  that 
John  Taylor  Gilman  would  be  more  likely  to  be 
chosen,  the  men  who  had  the  year  before  taken  such 
pains  to  get  him  from  the  bench  for  what  they  con- 
sidered a  more  important  place,  appointed  a  com- 
mittee to  wait  upon  him,  and  advise  him,  on  account 
of  his  apparent  unpopularity,  to  decline  being  again 
a  candidate.  The  committee,  who  went  on  this 
ungracious  errand,  were  received  as  might  been  been 
expected.  He  replied,  in  substance,  and  with  emotion 
not  unmixed  with  anger,  that  as  he  had  taken  no 
part  in  putting  himself  forward  for  the  office  he  then 
held,  so  he  should  take  no  part  in  withdrawing  him- 


to  tell  very  amusingly.  There  happened  to  be  present,  (I  believe  it 
was  on  this  occasion,)  an  English  lady  of  some  note,  whom  a  distin- 
guished literary  gentleman  was,  as  the  governor  thought,  overloading 
•with  flattery.  When  an  opportunity  occurred,  he  ventured  to  suggest  to 
the  lady,  that  she  must  not  consider  that  man  a  fair  specimen  of 
American  breeding  ;  but  she  replied,  with  some  warmth,  that  "  he  was 
the  only  well  bred  man  she  had  found  in  America."  A  long  time  be- 
fore, Mr.  Smith  had  been  on  terms  of  intimate  friendship  with  a  young 
lady,  with  whom  he  corresponded  in  a  manner  certainly  not  creditable 
to  his  sincerity,  unless  he  intended  to  marry  her.  After  two  or  three 
years  the  lady  very  properly  broke  off  the  correspondence,  and,  in  a 
letter  which  showed  how  deeply  her  feelings  had  been  wounded,  but 
with  the  dignity  becoming  a  woman  under  such  circumstances,  sent 
back  his  letters,  and  asked  that  hers  might  be  restored  to  her.  Years 
had  now  passed  by,  since  both  the  parties  were  married,  when  they  met 
once  more  at  President  YVheelock's,  and  it  fell  to  the  governor's  lot  to 
wait  upon  her  to  the  dinner-table.  As  they  were  going  out,  she  ob- 
served in  a  tone  of  some  resentment,  "  Ah,  Jerry  Smith !  I  know  yon." 

"  And  my  dear ,"  he  instantly  replied,  "  I  know  you,  and  I 

love  you  too."  It  is  difficult  to  say  which  most  to  admire,  the  gallantry 
or  the  impudence  of  the  reply. 


LIFE    OF   JUDGE    SMITH.  £55 

self  from  it.  His  friends  retired  as  wise  as  they 
came  ;  but  there  was  left  on  his  mind  a  feeling, 
which  he  never  got  over,  of  inexpressible  repugnance 
to  the  little,  self-elected,  irresponsible  cliques,  who  by 
their  secret  management  would  dispose  of  all  offices 
and  control  public  affairs.  His  subsequent  writings 
are  marked  by  a  degree  of  severity  and  bitterness  on 
this  subject,  which  they  show  in  respect  to  nothing 
else.  It  was  a  standing  remark  of  his  through  life, 
that  he  had  received  more  injury  from  his  friends 
than  from  his  enemies. 

At  the  election  in  March,  1810,  John  Langdon 
was  chosen  governor  of  New  Hampshire,  and  Mr. 
Smith  was  once  more  thrown  back  into  private  life. 
Except  in  respect  to  his  health,  which  I  cannot  but 
think  was  one  of  his  chief  reasons  for  leaving  the 
bench,  the  experiment  had  proved  an  utter  failure. 
In  not  one  of  the  principal  measures  which  he  had 
proposed  to  himself  had  he  succeeded  ;  but  at  every 
step  he  was  vexed,  embarrassed  and  disappointed. 
He  often  referred  to  words  used  in  the  prayer  at  his 
inauguration,  "  that  he  might  go  in  and  out  before 
this  people,"  as  literally  fulfilled.  We  may  well 
understand  how,  when  some  years  after  he  was  ad- 
dressed by  a  stranger  in  the  words,  "  Governor 
Smith,  I  believe,"  he  could  very  sincerely  reply, 
"  The  same  that  was  such  for  a  short  time,  and  but 
a  short  time,  thank  God ;  —  not  but  that  I  believe 
in  my  conscience  the  good  people  of  the  state  were, 
to  say  the  least,  equally  glad  that  the  time  was 
short." 

But  however  lightly  he  might  speak  of  it,  and 


256  LIFE    OF   JUDGE    SMITH. 

however  cheerfully  he  might  bear  it,  the  experience 
of  that  year  was  to  him  a  severe  and  heavy  disap- 
pointment. He  was  not,  I  believe,  insensible  to 
popular  favor;  but  took,  as  every  good  man  will,  an 
honest  satisfaction  in  seeing  his  efforts  appreciated 
and  valued.  But  the  sore  trial  was  to  find  himself 
thwarted  and  crippled,  in  respect  to  those  great 
measures  by  which  he  had  hoped  to  advance  the  best 
interests  of  the  state,  and  by  its  superior  laws  and 
judicial  institutions,  to  build  up,  in  the  judgment  of 
the  wise  and  good,  beyond  the  reach  of  popular 
favor  or  reproach,  a  lofty  and  enduring  reputation. 

But  why  did  he  not  succeed  ?  In  the  first  place, 
those  were  violent  party  times,  and  he  who  did  not 
enter  with  his  whole  heart  into  the  party  contest, 
could  not  secure  the  public  sympathy  so  far  as  to 
carry  through  any  great  and  important  public  meas- 
ure. Where,  under  the  discipline  of  unscrupulous 
leaders,  a  party,  guided  by  party  feeling,  keeps  itself 
in  power  for  a  succession  of  years,  there  is  estab- 
lished a  despotism,  which  curses  the  very  soil  on 
which  it  treads.  Social  affections,  public  and  pri- 
vate honor,  the  rights  of  individual  judgment,  when 
at  variance  with  the  rules  of  a  few  party  leaders, 
are  sacrificed  without  mercy.  They  who  have  the 
courage  to  stand  by  their  own  opinions,  are  pro- 
scribed and  driven  out  from  offices  of  trust  and 
honor,  and  many  of  the  best  and  ablest  men  are,  in 
fact,  disfranchised  and  disowned.  The  political  his- 
tory of  New  Hampshire,  for  the  last  five-and-thirty 
years,  might  be  adduced,  to  illustrate  and  confirm 
these  general  remarks.  If  the  future  historian  should 


LIFE    OF   JUDGE    SMITH.  257 

condescend  to  notice  those  who  have  there  held  the 
highest  offices,  he  will  meet  with  honorable  excep- 
tions ;  but  too  often,  while  seeking  to  hold  up  en- 
couraging examples  of  political  distinction,  he  will  be 
obliged  to  make  out  the  sad  record  of  moral  degra- 
dation. But  there  is  a  law  of  retribution,  which 
makes  no  distinction  between  public  and  private 
conduct,  and  which,  in  its  own  good  time,  obliges 
all  to  reap  even  as  they  sow.  When  the  leading 
federalists,  forsaking  the  great  principles  of  public 
policy  on  which  they  professed  to  act,  began  to  show 
their  conservatism  by  deranging  permanent  institu- 
tions, in  order  to  remove  temporary  evils,  the  party 
fell  through,  as  untrue  to  itself.  And  so  with  the 
other  party,  when,  instead  of  looking  to  the  good  of 
all,  it  converts  itself  into  a  mighty  engine  for  the 
exaltation  of  its  leaders,  it  may  for  a  long  time  seem 
to  prosper  ;  but  sooner  or  later  they  who  have  tri- 
umphed most,  will  be  forced  to  taste  the  bitter  and 
poisonous  fruit  of  the  tree  which  their  own  hands 
have  planted,  in  the  vain  hope  that  it  would  prove 
fatal  only  to  their  opponents. 

But  in  addition  to  all  this  there  was,  in  the  posi- 
tion which  Mr.  Smith  had  previously  occupied,  and 
in  his  character,  much  that  disqualified  him  for 
being  a  popular  politician.  He  who  for  so  many 
years  had  filled  the  highest  place  on  the  bench,  till 
his  form  had  become  associated  in  the  minds  of  the 
people  with  the  venerable  majesty  of  the  law,  could 
not,  without  losing  something  of  their  respect  and 
his  own,  come  down  to  manage  the  thousand  springs 
which  act  upon  the  public  mind.  It  may  be  ques- 
22* 


258  LIFE    OF    JUDGE    SMITH. 

tioned  whether  any  one,  who  has  been  long  and 
eminently  distinguished  as  a  clergyman  or  judge,  can, 
as  an  active  politician,  continue  to  enjoy  the  public 
confidence.  For,  in  proportion  to  the  purity  of  mind, 
the  loftiness  of  purpose,  the  sanctity  of  life,  which 
men  have  been  accustomed  to  attribute  to  him,  will 
be  the  revulsion  of  feeling,  when  they  see  him  de- 
scend from  his  high  place,  to  mingle,  like  others,  in 
the  vulgar  fray.  And  he  whose  sole  business  it  has 
been  for  years  to  discover  what  is  just,  and  to  de- 
clare it  with  an  authority  from  which  there  is  no 
appeal,  cannot  volunteer  to  come  down  into  the 
arena  of  political  strife,  and  stand  there  as  a  candn 
date  for  popular  favor,  without  losing  in  his  own 
mind  something  of  the  sense  of  personal  dignity  and 
self-respect.  At  the  same  time,  the  habits  of  his  life, 
just  in  proportion  as  they  have  lifted  him  above  the 
passions  of  the  world,  in  the  discharge  of  his  sacred 
duties,  have  destroyed  in  him  that  quick  sympathy 
with  the  popular  feeling,  by  which  he  may  adapt 
himself  to  circumstances,  and  prepare  his  measures 
and  the  public  mind  for  each  other.  Here  Governor 
Smith  was  extremely  deficient.  As  a  statesman,  he 
could  see  clearly,  and  prepare  with  remarkable  wis- 
dom, the  measures  best  fitted  for  the  public  good  ; 
but  as  a  politician,  he  had  not  the  art  of  managing 
men,  and  so  of  securing  the  adoption  of  his  meas^ 
ures.  This  he  has  himself  expressed,  with  equal 
sincerity  and  truth.  "  I  have  been,"  he  says,  in  the 
record  of  his  private  thoughts,  February,  1825,  "  too 
regardless  of  private  fame,  too  heedless  of  personal 
advantages ;  have  taken  too  little,  indeed  no  pains, 


LIFE    OF    JUDGE    SMITH.  259 

to  secure  to  myself,  by  legitimate  and  honorable 
means,  a  popular  sanction  of  my  conduct.  I  have 
always  had  a  general  wish  for  public  and  private  ap- 
probation ;  but  have  always  been  too  much,  too  en- 
tirely occupied,  in  the  particular  actions  in  hand,  to 
regard  their  bearing  on  popular  opinion.  The  first 
intimation  I  have  generally  had  that  the  manner  was 
wrong,  (for  the  actions  were  generally,  and  the  in- 
tentions always  good,)  has  been  the  advantage  taken 
by  persons  desirous  of  disparaging  me  in  the  public 
estimation." 

In  another  place  he  has  said :  "  It  is  not  new  to 
me  to  be  blamed  by  two  opposing  parties.  As  a 
party  man,  it  is  an  insuperable  objection  to  me  that  I 
can  as  easily  discern  the  faults  on  my  own  side  as  on 
the  other.  Now  your  true  party  man  sees  no  faults 
but  on  one  side,  and  there  all  is  in  fault." 

"  A  party  must  do  the  very  thing  we  condemn, 
prefer  their  friends  to  the  public  good.  They  cannot 
retain  power,  or  be  stable,  without  gratitude  to  their 
friends.  The  chain  of  friendship  must  be  bright  — 
the  difficulty  is  in  retaining  those  for  whom  they  can 
do  nothing.  They  must  be  liberal  of  promises,  and  it 
is  well  if  they  for  whom  nothing  is  done  be  simple. 
The  knowing  ones  must  be  provided  for,  and  the  less 
pure  the  conduct,  the  greater  the  clamor  set  up  about 
their  own  purity,  accompanied  with  vehement  accu- 
sations against  their  adversaries.  They  are  sure  of 
belief  in  both  ;  a  jury  will  not  require  much  evi- 
dence, where  they  have  an  interest  in  the  verdict." 

To  obtain  popularity,  or  serve  the  people  by  such 
means,  was  altogether  beyond  Governor  Smith's  skill. 


CHAPTER  IX. 

1810  —  1820. 

MR.    SMITH    AT    THE    BAR  —  JUDICIARY   ACT    OF    1313 

CHIEF     JUSTICE  JUDICIARY    ACT     OF      1316  MR. 

SMITH    AGAIN    AT    THE    BAR. 

ON  ceasing  to  be  governor,  Mr.  Smith  returned  to 
the  practice  of  his  profession.  He  did  not  lose  the 
cheerfulness  that  was  so  remarkable  a  trait  in  his 
character,  nor  had  he  ever  the  embittered  feelings  of 
an  ill-used  or  disappointed  man.  A  gentleman,1  who 
afterwards  reached  the  highest  place  at  the  New 
Hampshire  bar,  and  who  was  with  Mr.  Smith  as  a 
student  in  1810,  gives  the  same  account  as  all  others 
who  at  any  time  were  in  his  family,  of  his  obliging 
attentions  to  the  young,  and  his  uniform  elasticity 
of  spirits.  Yet  I  doubt  whether  he  engaged  in  busi- 
ness or  politics  with  as  much  interest  and  zest  as 
before  he  went  upon  the  bench.  This  I  infer  from 
single  expressions  in  his  letters  to  Mrs.  Smith.  — 

1  Joseph  Bell,  Esq.,  now  of  the  Massachusetts  legislature. 


LIFE    OP    JUDGE    SMITH.  261 

"  Keene,  24th  October,  1810.  I  wish  I  loved 
money,  for  then  it  would  give  me  pleasure  to  earn 
it ;  but  I  do  not,  and  nothing  but  a  sense  of  duty 
makes  me  labor  in  my  profession."  "  Amherst, 
12th  October,  1811.  I  have  not  stood  in  need  of 
nursing,  but  have  needed  a  great  deal  of  soothing, 
which  nobody  but  you  could  give.  Mrs.  S.  is  very 
well  and  very  kind,  but  I  wish  with  all  my  heart  that 
you  were  here."  "  Boston,  24th  March,  1812.  I 
have  lost  my  taste  for  politics,  if  I  ever  had  any, 
and  here  I  hear  nothing  else.  God  grant  that  I  may 
be  delivered  from  this  body  of  politicians,  and  re- 
turn to  my  rest."  But  nowhere  in  his  letters,  writ- 
ten with  the  unrestrained  freedom  of  perfect  confi- 
dence, is  there  an  expression  that  would  indicate 
disappointment,  or  a  mind  dissatisfied  with  his  po- 
sition. 

His  professional  income  more  than  equalled  his 
expectations,  and  his  faculties  must  have  been  tasked 
to  the  utmost ;  for  in  the  same  county  with  himself 
were  Jeremiah  Mason,  Daniel  Webster,  and  George 
Sullivan.  These  men  were  then  in  the  full  vigor  of 
manhood,  and  in  the  contests  at  the  bar  must  have 
furnished  an  extraordinary  exhibition  of  forensic 
power.  Mr.  Sullivan,  the  son  of  Gen.  John  Sul- 
Hvan,  and  for  many  years  attorney-general  of  New 
Hampshire,  was  a  man  of  fine  address,  quick  parts, 
and  flowing  eloquence.  It  was  a  pleasure  to  listen 
to  the  rich  tones  of  his  voice,  as  the  sentences  came 
rolling  out  with  their  full,  regular  and  sonorous  ca- 
dences. But  he  was  as  much  inferior  to  Smith  and 
Mason  in  legal  strength  and  knowledge,  as  he  was 


262  LIFE    OF    JUDGE    SMITH. 

their  superior  in  the  power  to  move  the  feelings  of 
a  jury.  The  names  of  Mr.  Smith  and  Mr.  Mason 
are,  by  those  who  remember  those  times,  most  fre- 
quently mentioned  together.  They  were  powerful 
combatants,  less  unequal  than  unlike.  Both  were 
profoundly  learned,  but  Smith  the  more  accomplished 
scholar ;  both  were  profound  thinkers,  but  Mason's 
the  more  original  mind.  With  perhaps  equal  in- 
dustry in  the  preparation  of  causes,  the  one  fortified 
his  position  with  accumulated  authorities,  the  other 
trusted  more  to  his  native  strength  and  the  force  of 
reason.  The  one  was  copious  in  illustrations,  open- 
ing his  views  as  in  the  broad  sunlight,  and  explain- 
ing them  till  none  could  fail  to  understand  ;  the  other 
laid  himself  out  in  a  few  bold  strokes,  and  with  a 
condensed  energy  of-  expression  that  seldom  em- 
ployed a  superfluous  word.  The  one  was  a  more 
lucid  expositor ;  the  other  a  stronger  reasoner,  and 
possessing  more  masterly  powers  of  analysis.  In 
cross-examining  witnesses,  Mr.  Mason,  whose  skill  in 
this  respect  was  perhaps  unequalled  in  this  country, 
laid  his  plans  far  back,  getting  all  that  he  wished 
before  his  design  was  suspected ;  while  Mr.  Smith, 
with  piercing  eye,  watched  his  opportunity  and  darted 
with  sudden  surprise  on  the  unhappy  man  who  was 
laboring  to  conceal  the  truth.  Yet  either  could  ap- 
ply the  other's  method.  Severity  with  the  one  smote 
down  its  victim  by  a  single  blow ;  with  the  other  it 
was  oftener  a  cutting  irony,  from  its  exceeding  sharp- 
ness hardly  felt  till  the  mischief  was  done.  Wit,  in 
the  one,  had  the  pungency  that  only  awakes  a  smile ; 
in  the  o-i  er,  it  was  the  ludicrous  association  or  the 


LIFE    OF    JUDGE    SMITH.  263 

joyous  humor,  that  convulses  men  with  laughter. 
But  here  too,  either  could  use  the  other's  weapons. 
In  pathos,  they  were  perhaps  equally  deficient ;  and 
equally  remarkable  for  the  contemptuous  indignation 
which  they  could  excite  against  whatever  was  mean 
or  dishonest.  As  an  advocate,  each  was  ready  to 
take  all  the  advantage  of  his  adversary  that  profes- 
sional adroitness  and  the  rules  of  the  bar  would  al- 
low ;  but  they  were  both  men  of  personal  honor, 
and  of  a  proud,  unbending  integrity  ;  and  as  either 
spoke  of  those  high  virtues,  he  seemed  a  fitting  cham- 
pion and  representative  of  his  cause.  Neither  of 
them  laid  claim  to  the  charm  or  graces  of  oratory. 
When  they  met  at  the  bar,  it  was  the  stern  encoun- 
ter of  massive  intellectual  strength,  in  which  they 
dealt  their  heaviest  and  sharpest  blows.  In  legal  ac- 
quirements and  logical  skill,  they  were  the  not  un- 
worthy associates  and  antagonists  of  Daniel  Webster ; ' 


1  The  first  time  that  Mr.  Mason  and  Mr.  Webster  ever  met,  was  in  a 
criminal  trial.  Col. ,  a  man  somewhat  prominent  in  the  demo- 
cratic party,  had  been  indicted  for  counterfeiting.  It  was  a  desperate 
case,  since  he  had  been  detected,  not  merely  once  or  twice,  but  many 
times,  in  passing  counterfeit  money.  He  was  so  connected  with  his  party, 
that  it  was  thought  very  important,  on  political  grounds,  to  secure  his  ac- 
quittal. A  subscription  was  accordingly  raised  to  defray  the  expenses, 
and  Mr.  Mason  was  employed  to  defend  him.  It  so  happened,  that  just 
before  the  trial  came  on,  the  attorney-general  — not  Mr.  Sullivan  — who 
was  subject  to  fits  of  intemperance,  was  obliged  to  go  home,  and  Mr. 
Webster,  who  lived  in  the  neighborhood,  and  knew  all  about  the  case, 
was  applied  to  by  the  solicitor  to  act  in  behalf  of  the  state.  Mr.  Mason 
had  heard  of  him  as  a  young  man  of  remarkable  promise,  but  he  "  had 
heard  such  things  of  young  men  before,"  and  prepared  himself,  as  he 
would  have  done,  to  meet  the  attorney-general.  But  he  soon  found  that 
he  had  quite  a  different  person  to  deal  with.  The  young  man  "  came 
down  upon  him  like  a  thunder-shower  ;  "  and  Mr.  Mason's  client  got  off, 
as  he  thought,  more  on  account  of  the  political  feelings  of  the  jury,  than 
from  the  arguments  of  the  counsel. 


264  LIFE    OF    JUDGE    SMITH. 

while  in  that  combination  of  gifts  which  makes  the 
commanding  orator,  he  stood  with  them,  as  he  has 
done  everywhere  else,  like  Mount  Washington  among 
the  other  mountains  of  New  England.  Mr.  Smith 
has  often  said,  that  in  single  qualities  he  had  known 
men  superior  to  Mr.  Webster ;  that  Hamilton  had 
more  original  genius ;  Ames,  greater  quickness  of 
imagination  ;  that  Marshall,  Parsons,  and  Dexter  were 
as  remarkable  for  logical  strength  ;  but  that,  in  the 
union  of  high  intellectual  qualities,  he  had  known  no 
man  whom  he  thought  his  equal. 

While  the  New  Hampshire  bar  was  at  that  time 
distinguished  for  its  ability,  the  bench  did  not  enjoy 
in  an  equal  degree  the  public  confidence.  The  chief 
justice,  a  man  of  strong,  uncertain  powers,  in  whom 
was  vested  whatever  of  respect  the  court  was  entitled 
to,  was  the  only  one  among  the  judges  of  the  supe- 
rior court,  who  had  not  evidently  been  appointed 
from  party  considerations  alone.  Richard  Evans, 
who  had  been  placed  upon  the  bench  by  Gov.  Lang- 
don  a  few  days  before  he  was  succeeded  by  Gov. 
Smith,  had  a  sort  of  metaphysical  talent,  but  no  ac- 

Mr.  Mason  was  particularly  struck  with  the  high,  open,  and  manly 
ground  taken  by  Mr.  Webster,  who,  instead  of  availing  himself  of  any 
technical  advantage,  or  pushing  the  prisoner  hard,  confined  himself  to 
the  main  points  of  law  and  fact.  Mr.  Mason  did  not  know  how  much 
allowance  ought  to  be  made  for  his  being  taken  so  by  surprise ;  but  it 
seemed  to  him  that  he  had  never  since  known  Mr.  Webster  to  show 
greater  legal  ability  in  an'argument. 

In  drawing  any  comparison  between  Mr.  Smith  and  Mr.  Mason  as 
advocates,  it  should  be  borne  in  mind  that,  while  the  latter  was  actively 
engaged  at  the  bar  more  than  forty  years,  the  former,  after  spending 
seven  years  in  congress,  gave  the  strength  and  enthusiasm  of  his  man- 
hood to  the  duties  of  the  bench,  for  which,  more  than  for  the  bar,  his 
taste,  abilities  and  attainments  had  peculiarly  fitted  him. 


LIFE     OF     JUDGE     SMITH.  265 

quaintance  with  the  law ;  and  Clifton  Claggett,  whom 
Gov.  Smith  had  repeatedly  refused  to  nominate  for 
the  bench,  but  who  had  received  the  appointment 
from  one  of  his  democratic  successors,  belonged  to 
the  profession,  but  was  too  weak  a  judge  to  be  looked 
up  to  by  the  bar  with  respect. 

In  June,  1813,  the  federalists  being  then  in  power, 
an  act  of  the  legislature  was  passed,  by  which  the 
old  courts  were  abolished,  and  every  superior  and  in- 
ferior judge  in  the  state  was  thrown  out  of  office. 
There  were  confessedly,  in  the  old  system,  serious 
imperfections,  which  were  remedied  by  the  new,  es- 
pecially in  allowing  jury  trials  to  be  conducted  by  a 
single  judge,  and  in  making  provision  for  a  law  term, 
but  the  main  object  in  making  the  change  undoubt- 
edly was  to  get  rid  of  incompetent  judges.  It  was 
a  bold  stroke,  not,  in  all  its  extent,  sanctioned  by  the 
leading  men  at  the  bar,  and  directly  at  variance  with 
what,  throughout  the  United  States,  had  been  the 
avowed  principles  of  the  conservative  party.  There 
was  nothing  on  which  they  had  professed  to  depend 
so  much  for  the  stability  of  our  government,  as  a  judi- 
ciary which  should  be,  as  far  as  practicable,  indepen- 
dent of  popular  or  legislative  interference  ;  and  here, 
by  a  single  act  of  theirs,  every  judge  in  the  state  had 
been  displaced.  If  the  object  were  to  reform  the 
court,  why  not  change  it  without  removing  the  judges  ? 
If  to  remove  the  judges,  why  not  remove  them  in  the 
way  the  constitution  had  provided,  by  address  from 
the  legislative  to  the  executive  department  ?  Or 
if  both  purposes  were  to  be  answered,  why  not  let 
each  be  done  in  the  way  which  the  constitution  had 


266  LIFE     OF     JUDGE     SMITH. 

pointed  out  ?  In  a  government  like  ours,  there  is 
nothing  from  which  we  have  more  to  apprehend  than 
the  disposition  on  the  part  of  the  people  to  break 
through  established  safeguards,  in  order  to  get  rid  of 
some  pressing  but  temporary  evil.  In  their  impa- 
tience under  a  present  infliction,  they  forget  the  flood 
of  disorders  that  may  be  let  in  through  a  single  breach 
of  the  constitution.  It  is,  therefore,  particularly  in- 
cumbent on  the  leading  men  in  the  conservative 
party  to  bear  long  with  evils,  which  must  in  time  die 
out  of  themselves,  before  they  consent  to  do  that 
which  may  so  much  as  seem  to  sanction  such  a  course. 
In  this  particular  case,  however,  it  must  be  remem- 
bered that  as  far  as  precedent  could  go  to  establish  a 
construction  of  the  constitution,  congress,  in  abolish- 
ing the  United  States'  circuit  court,  and  the  legisla- 
ture of  Massachusetts,  in  abolishing  their  court  of 
common  pleas,  had  given  ample  authority  for  this  act. 
and  that  whatever  might  have  been  the  course  most 
consistent  with  the  principles  of  the  federalists,  their 
opponents  had  no  reason  to  complain  of  what  had 
been  done  ;  since  it  was  but  following  an  example 
which  they,  under  similar  circumstances,  had  most 
heartily  approved. 

The  judiciary  act  of  1813,  was  a  thoroughly  radi- 
cal measure,  adopted  by  a  party,  who  appear  to  have 
been  surprised  at  finding  themselves  again  in  power, 
and  who,  by  this  act,  began  to  open  the  way  for  their 
final  and  decisive  overthrow.  The  ablest  lawyers, 
who  had  seen  the  defects  of  the  old  system,  and  la- 
bored for  some  change  as  absolutely  necessary,  were 
hardly  prepared  for  such  a  change.  The  democratic 


LIFE     OF     JUDGE     SMITH.  267 

party,  who  viewed  the  act  as  utterly  unconstitutional, 
threatened  a  civil  revolution  in  the  state.  On  all 
sides,  it  was  considered  impossible  for  the  new  court 
to  get  under  weigh,  unless  Mr.  Smith  would  consent 
to  be  the  chief  justice.  To  him  it  was  a  source  of 
extreme  perplexity  and  vexation.  He  heartily  disap- 
proved of  what  had  been  done,  and  yet  by  consenting 
to  be  placed  at  the  head  of  the  new  judiciary,  he 
must  expect  to  encounter  all  the  difficulties,  and  to 
bear  all  the  odium  connected  with  it.  In  a  pecuniary 
point  of  view  it  was  a  great  sacrifice,  since  his  income 
at  the  bar  was  more  than  three  times  what  it  would 
be  upon  the  bench,1  and  his  circumstances  at  that 
time  were  such  as  to  make  this  a  matter  of  considerable 
consequence  to  him.  Governor  Oilman  was  exceed- 
ingly anxious  that  he  should  accept  the  office,  but  could 
get  at  first  no  definite  answer.  Mr.  Mason,  then  a 
senator  in  congress,  in  a  letter  to  Mr.  Smith,  dated 
Washington,  July  6,  1813,  says:  "My  only  fear  is 
respecting  your  acceptance.  I  am  confident  the  suc- 
cess of  the  system  will  depend  on  you.  Should  you 
decline,  I  cannot  see  how  jt  will  get  into  operation. 
....  I  hope  you  will  find  no  objection  to  accept- 
ing the  office  with  the  intention  of  retaining  it  per- 
manently. At  all  events,  you  must  in  my  opinion 
accept  and  hold  it  for  a  time,  or  prepare  to  see  disap- 
pointment and  confusion  ensue I  will  only 

add  that  Mr.  Webster  and  others  here,  entirely  agree 
with  me  in  the  wishes  I  have  expressed  on  this  sub- 


1  By  the  act  of  1813,  the  salary  of  the  chief  justice  was  fifteen  hun- 
dred dollars,  that  of  the  associate  judges,  twelve  hundred. 


268  LIFE     OF     JUDGE     SMITH. 

ject."  In  another  letter,  Mr.  Mason  says  :  "  When 
about  a  fortnight  ago  I  sent  you  my  advice  respecting 
your  duty  in  a  very  important  particular,  I  intended 
soon  to  have  written  again.  I  had  not  vanity  enough 
to  suppose  I  should  have  much  influence  with  you, 
but  I  thought  the  course  you  adopted  so  important 
to  the  community,  that  I  could  not  refrain  from  ex- 
pressing my  wishes.  I  see,  by  the  public  papers,  you 
have  been  appointed  chief  justice  ;  I  hope  I  shall 
soon  see  that  you  have  accepted.  Nothing  else  will 
put  down  the  clamor  raised  against  the  system. 
Should  you  decline  I  think  I  see  danger  of  confusion. 
I  say  this  with  the  utmost  sincerity.  I  have  seen  all 
the  newspapers,  and  been  informed  of  the  feelings  of 
the  democratic  party." 

In  his  reply  to  these  letters,  dated  July  26,  Mr. 
Smith  says :  "  I  would  hardly  believe  that  anything 
could  have  given  ma  so  much  perplexity  as  this  .  .  . 

(y°u  ma}T  fill  this  UP  witn  any  epithets 

you  choose)  new  judiciary  act  has  done.  Before  I 
received  your  letter  I  had  come  to  the  same  conclu- 
sion you  seem  to  have  done. 

"  I  need  not  state  to  you  the  pros  and  cons  ;  you 
will  easily  conceive  of  them  all,  and  it  would  be  a 
very  long  letter  as  well  as  a  very  dull  one  to  state 
them.  It  is  only  one  year,  and  if  it  please  heaven,  I 
may  still  have  time  enough  to  acquire  the  little  that  I 
need. 

"  I  verily  believe  our  path  is  beset  with  difficulties 
—  our  members  in  the  legislature  were  chock  full  of 
courage  when  they  were  at  Concord,  stuffing  them- 
selves with  brandy,  and  each  other  with  big  swelling 


LIFE    OF    JUDGE    SMITH.  269 

words  of  their  own  importance.  But  when  they  got 
home  and  came  to  be  sober,  the  scene  was  sadly 
changed  ;  they  were  most  piteously  frightened,  and 
others,  including  —  et  id  genus  omne,  ingenuously 
taking  advantage  of  the  panic,  have  seized  those  pure 
vehicles,  the  Gazette  and  Patriot,  and  continue  pour- 
ing out  on  the  public,  essay  upon  essay,  paragraph 
upon  paragraph,  alternately  coaxing  and  bullying.  I 
sincerely  believe  if  they  (the  general  court,)  could 
get  back  the  act,  they  would  see  the  devil  have  it 
before  they  ever  passed  another  such.  Judge  Liver- 
more  is  here  and  accepts.  I  have  just  received  a 
letter  from  Ellis,  in  which  he  proposes  to  embark  on 
the  stormy  sea,  if  I  will." 

The  following  letter  to  his  old  friend,  Timothy 
Farrar,  explains  his  feelings  more  fully  : 

"Exeter,  26th  July,  1813.  Dear  Sir:  I  could  not 
but  be  flattered  by  your  letter  of  the  19th.  There 
certainly  is  no  man,  whose  opinions  would  weigh 
more  with  me,  or  whose  wishes  I  should  have  more 
pleasure  in  gratifying,  than  yours.  Before  I  received 
your  letter,  I  had  however  determined  on  the  course 
I  ought  to  take.  I  hope  it  will  meet  your  approba- 
tion. For  the  greater  and  better  portion  of  my  life  I 
have  pursued  that  course  which  the  public  were 
pleased  to  direct,  and  it  has  always  been  to  me  more 
troublesome  and  less  profitable  than  the  one  I  had 
chosen  for  myself.  When  this  same  public  were 
pleased,  three  years  ago,  to  say  that  they  had  no  far- 
ther occasion  for  my  services,  I  concluded  that  I 
might  safely  calculate  on  the  little  of  life  that  re- 
mained, as  my  own.  At  my  age  and  with  slender 
23* 


270  LIFE    OF    JUDGE    SMITH. 

health,  it  would  have  been  presumptuous  to  have 
counted  on  riches  or  length  of  days.  My  success  has 
more  than  answered  my  expectations,  and  I  have 
never  entertained  the  thought  of  quitting  the  shade 
which  Providence  seemed  to  have  provided  for  me. 
I  found  it  necessary  to  pursue  the  business  of  my 
profession  a  little  longer,  and  it  has  not  been  irksome 
to  me.  The  responsibility  attached  to  the  office  of 
judge,  and  especially  of  chief  justice,  pressed  heavily 
on  me  when  I  had  more  strength  and  much  greater 
zeal  than  I  have  now.  No  man  was  ever  more 
sincere  in  his  endeavors  to  fulfil  the  duties  of  an 
appointment,  than  I  was. 

"  You  can  form  a  correct  opinion  of  the  difficulties 
with  which  a  judge  has  to  contend.  In  looking  back, 
I  see  abundant  matter  for  mortification  ;  but  these  re- 
trospections give  me  no  pain,  because  I  always  in- 
tended well,  and  never  spared  any  labor.  I  hope  it 
will  not  be  thought  vain  to  say,  that  when  the  public 
and  I  fell  out,  I  did  not  consider  myself  as  owing 
them  anything.  They  had  no  claims  on  me,  and  I 
was  as  desirous  as  they  could  be  that  our  separation 
should  last  forever.  As  to  the  past,  I  was  disposed 
with  all  my  heart  to  offset  any  little  slights  or  ill- 
usage  on  their  part,  against  the  many  errors  (none  of 
them  intentional)  and  imperfections  they  must  have 
discovered  in  me.  But  nothing  was  farther  from  my 
thoughts  than  to  open  a  new  account.  Under  these 
circumstances  (and  it  would  be  taxing  you  too  se- 
verely to  state  all  my  objections  to  a  renewal  of 
public  life,)  you  can  form  some  idea  of  the  perplex- 
ity which  this  new  judiciary  act  has  occasioned  me. 


LIFE    OF    JUDGE    SMITH.  271 

A  very  bold  step  has  been  taken,  in  which  I  had  no 
agency,  and  as  to  which  I  was  not  even  consulted. 
It  is  a  step,  too,  which  I  should  not  have  advised, 
though  two  things  have  been  gained  by  it  of  great 
consequence,  the  trial  of  jury  causes  before  a  single 
judge  of  the  supreme  court,  and  the  chance  of  ob- 
taining better  men  than  the  old  system  was  calcu- 
lated generally  to  give  for  the  common  pleas  bench. 
But  the  step  has  been  taken,  and  if  it  does  not  suc- 
ceed well,  it  will  do  an  infinite  deal  of  mischief. 

"  I  have  been  given  to  understand,  from  several 
quarters,  that  many  people  are  pleased  to  suppose 
that  my  services  at  this  time  are  needed,  and  that,  if 
they  are  withholden,  it  will  weaken  a  cause  to  which, 
from  sincere  conviction,  I  have  always  given  my 
feeble  support,  and  add  strength  to  a  cause  already 
too  strong.  If  this  experiment  should  not  succeed, 
it  will  destroy  all  hopes  of  any  improvement  in  our 
judicial  system  in  our  day.  Except  so  far  as  regards 
myself,  there  is  doubtless  weight  in  these  observa- 
tions. At  the  same  time  it  is  equally  true  that  I 
cannot  hold  the  office  of  chief  justice  with  the  salary 
annexed  to  it.  I  have  made  such  arrangements  on 
the  score  of  expense,  &c.,  as  forbids  it.  I  never  will 
consent  to  be  dependent  as  a  public  or  private  man. 
Besides,  ever  since  the  people  of  Massachusetts  have 
done  their  duty  on  this  subject,  I  have  persuaded 
myself  that  the  honor  of  the  state,  their  interest,  the 
nature  of  the  office,  its  duties,  to  say  nothing  about 
its  dignity,  require  a  much  higher  salary,  one  which 
shall  at  all  times  command  the  services  of  those  best 
qualified.  I  have  persuaded  myself,  also,  that  it 


272  LIFE    OF    JUDGE    SMITH. 

may  do  some  good  to  the  state,  and  have  some  ten- 
dency perhaps  in  the  end  to  procure  better  salaries 
for  others,  if  I  avow  these  sentiments  and  act  upon 
them.  It  is  not  necessary  for  the  state,  and  as  little 
for  me,  that  I  should  be  a  judge,  but  it  is  my  sincere 
desire  that  the  office  should  be  raised  ;  because  I  am 
persuaded  that  the  character  of  our  judiciary  will 
rise  with  it.  I  am  willing  to  be  thought  avaricious, 
(which  I  am  not,)  and  to  be  evilly  spoken  of,  if  it 
will  conduce  to  this  end.  I  know  this  is  not  the  road 
to  popularity,  and  I  do  not  like  it  the  worse  on  that 
account. 

"  Taking  everything  into  consideration,  I  have 
concluded  for  the  present  to  accept  the  office  and 
hold  it  for  a  year.  It  is  every  way  a  sacrifice.  The 
pecuniary  one  I  regard  the  least.  If  it  please  Heaven, 
I  shall  have,  after  that,  time  enough  to  acquire  in  my 
profession  the  small  sum  I  need.  Next  year  the  le- 
gislature will  have  an  opportunity  of  knowing  and 
expressing  the  public  sentiment  on  the  subject,  and 
every  one  will  be  convinced  that  my  continuance  is 
of  no  consequence.  In  taking  this  step,  it  did  not 
escape  me  that  standing  aloof  at  this  critical  moment 
would  expose  me,  among  a  certain  class  of  men,  to 
the  suspicion  of  acting  under  the  influence  of  resent- 
ment for  supposed  ill  treatment.  I  would  make  a 
sacrifice  at  any  time  rather  than  incur  such  suspi- 
cions, though  conscious  I  did  not  deserve  them.  But 
the  truth  is,  I  feel  nothing  of  all  this.  I  will  engage 
at  any  time  to  forget  ill  treatment  as  soon  as  its 
authors  forget  it,  and  to  forgive  it  much  sooner. 

"  I  have  said  a  great  deal  more  than  I  intended, 


LIFE    OF    JUDGE    SMITH.  273 

but  the  subject  interests  me,  and  there  are  few 
people  to  whom  one  can  speak  unreservedly  ;  so  that 
you  may  think  yourself  well  off  that  I  have  said  no 
more." 

Influenced  by  these  considerations,  Mr.  Smith  ac- 
cepted the  office,  with  Arthur  Livermore  (the  late 
chief  justice,)  and  Caleb  Ellis  for  associates.  There 
can  be  no  doubt  that  he  had  a  perfect  right  to  ac- 
cept the  office  ;  since  whatever  may  be  thought  of 
the  act  by  which  the  old  superior  court  was  abol- 
ished, the  legislature  was  unquestionably  authorized 
by  the  constitution  to  establish  such  new  courts  as  it 
might  see  fit.  But  Messrs.  Evans  and  Claggett,  of 
the  old  court,  regarding  as  unconstitutional  the  act 
by  which  their  offices  had  been  taken  from  them,  de- 
termined still  to  go  on  in  the  performance  of  their 
judicial  duties,  as  if  no  such  act  had  been  passed. 
The  democratic  papers  threatened  to  maintain  by 
violence,  if  necessary,  the  authority  of  the  old  judi- 
ciary, and  private  letters  were  received  by  Judge 
Smith,  urging  him,  if  he  would  avoid  a  civil  war, 
to  decline  accepting  the  office.  These  threats,  of 
course;  had  no  influence  upon  him.  He  felt  the 
delicacy  of  his  situation,  and,  foreseeing,  prepared 
himself  to  meet  the  difficulties  and  embarrassments 
that  were  to  be  thrown  in  his  way.  The  first  term 
of  the  court  was  to  be  holden  at  Dover,  in  Strafford 
county,  and  it  was  thought  best  that  it  should  be 
opened  by  Judge  Liverrnore,  as  he  had  been  chief 
justice  in  the  old  superior  court,  and  seemed  to  be 
entirely  satisfied  with  the  present  arrangement.  On 
Tuesday  morning,  September  7,  he  reached  Dover, 


274  LIFE    OF    JUDGE    SMITH. 

at  about  nine  o'clock,  and  finding  his  old  associates, 
Messrs.  Evans  and  Claggett  there,  with  the  deter- 
mination of  holding  their  court,  at  the  same  time  and 
place  appointed  for  his,  he  compromised  the  matter, 
by  agreeing  that  they  should  have  the  court-house  in 
the  forenoon,  and  he  in  the  afternoon.  This  com- 
promise seemed  unnecessary,  as  the  sheriff,  clerk, 
and  other  officers  were  on  his  side,  so  that  when 
Messrs.  Evans  and  Claggett  met,  they  had  no  grand 
jury,  and  no  means  of  carrying  on  the  business  of 
the  court.  They,  however,  appointed  a  clerk,  and 
Mr.  Evans  delivered  a  long  address,  condemning  the 
late  act  of  the  legislature,  and  then  adjourned  till  ten 
o'clock  the  next  morning.  In  the  afternoon  Judge 
Livermore  held  his  court,  and,  after  the  usual  charge 
to  the  grand  jury,  observing  that  he  had  a  communi- 
cation to  make  to  the  people,  he,  to  the  astonishment 
of  all  present,  made  a  strong  and  vehement  address 
against  the  act  under  which  he  held  his  office,  con- 
demning it  as  unconstitutional,  and  arraigning  the 
motives  of  the  legislature  that  passed  it,  in  terms 
exceedingly  harsh  and  severe.  He  then  adjourned 
the  court  till  nine  the  next  morning.  In  the  morning 
he  agreed  with  Evans  and  Claggett  that  they  should 
take  his  hour  and  place,  and  he  went  to  the  meeting- 
house, where  he  continued  from  day  to  day,  till  they 
had  finally  adjourned.  During  the  second  week,  the 
chief  justice  was  present,  and  went  on  with  the  busi- 
ness of  the  court  unmolested. 

The  next  session  of  the  supreme  judicial  court, 
which  was  at  Exeter,  the  third  Tuesday  in  Septem- 
ber, was  holden  by  the  chief  justice  and  Judge  EJlis. 


LIFE    OF    JUDGE    SMITH.  275 

Soon  after  they  had  taken  their  seats  upon  the 
bench,  Messrs.  Evans  and  Claggett  entered  the  court- 
house, and  seated  themselves,  one  on  the  right,  the 
other  on  the  left,  of  the  judges.  The  court  was  or- 
ganized, as  usual,  by  the  chief  justice,  although  his 
directions  were  all  countermanded,  and  the  sheriff 
refused  to  obey  any  but  the  late  judges.  For  in- 
stance, after  the  clerk  of  the  court  had,  at  the  request 
of  the  chief  justice,  administered  the  oath  of  office 
to  the  jurors,  Mr.  Evans  ordered  his  clerk  to  repeat 
the  ceremony,  stating  that  the  oath  just  administered 
was  unauthorized  and  illegal.  The  chief  justice  ex- 
pressed an  opinion  that  this  course  could  riot  be  tol- 
erated, and  the  jurors  all  refused  to  be  sworn  a 
second  time.  When  the  chief  justice  rose  to  charge 
the  grand  jury,  he  was  interrupted  by  Mr.  Evans, 
who  said,  "  Gentlemen,  the  act  recognizing  the  court 
that  is  now  about  to  address  you,  is  unconstitutional. 
We  acknowledge  that  these  men  (Smith  and  Ellis) 
are  judges  by  appointment,  but  not  judges  of  the 
superior  court.  They  may  have  an  inferior  jurisdic- 
tion ;  with  this  court  they  have  nothing  to  do."  The 
chief  justice  then  delivered  his  charge,  after  which 
juries  were  organized,  and  the  court  proceeded  to 
business,  the  defunct  judges  keeping  their  seats  in 
silence.  Judge  Smith  preserved  throughout  his  usual 
suavity  of  manners,  yielding  to  the  caprices  of  Evans 
and  Claggett,  and  permitting  them  to  go  through  with 
any  "  ceremony,"  as  he  termed  it,  "  that  they  deemed 
it  incumbent  on  them  to  perform." 

In  the  afternoon  the  judges,  finding  the  court- 
room occupied,  went  into  another  pait  of  the  house, 


276  LIFE    OF    JUDGE    SMITH. 

and  proceeded  with  the  business  before  them,  as  if  no 
interruption  had  taken  place. 

In  Hillsborough  county  the  same  farce  was  enacted, 
and  with  very  much  the  same  results.  Had  Messrs. 
Evans  and  Claggett  been  able  men,  supported,  as  they 
were,  by  a  powerful  political  party,  the  most  serious 
consequences  might  have  ensued  ;  but,  as  it  was, 
their  feeble  and  foolish  efforts  served  only  to  bring 
them  into  contempt.  They  lost  the  little  hold  they 
had  previously  had  upon  popular  sympathy,  and  their 
appeals  to  the  public  did  far  more  to  prove  their 
own  incompetency,  than  the  unconstitutionality  of 
the  act  by  which  they  had  been  superseded.1  Great 
credit  was  due  to  Mr.  Adams,  the  clerk,  for  his  firm 
and  judicious  conduct,  without  which  the  embarrass- 
ments would  have  been  almost  insuperable.  The 
forbearance,  too,  of  the  court,  supported  as  it  was  by 
their  distinguished  and  acknowledged  ability,  made  a 
most  favorable  impression  upon  the  public  mind. 
"  It  was  the  aim  of  the  chief  justice  and  Judge 
Ellis,"  said  Judge  Smith,  in  his  account  of  the  pro- 


1  At  Dover,  an  honest  fanner,  having  heard  Mr.  Claggett  in  a  written 
speech  of  several  hours,  laboring  to  prove  the  act  of  the  legislature, 
which  deprived  the  state  of  his  services  as  a  judge,  a  gross  and  flagrant 
violation  of  the  constitution,  observed,  when  he  came  out,  that  though 
the  good  man  had  failed  to  convince  him  that  the  representatives  of  the 
people  had  broken  the  constitution,  he  had  satisfied  him  that  he  (the  ex- 
judge)  was  never  qualified  for  the  office,  and  that  whoever  had  ap- 
pointed him,  must  have  been  as  weak  as  himself,  or  very  wicked.  The 
following  trifling  anecdote  from  the  newspapers  of  that  day,  as  well  as 
the  above,  may,  like  a  mote  in  the  air,  show  how  the  public  sentiment 
was  then  turning.  A  good  woman,  on  being  told  how  Evans  and  Clag- 
gett persisted  in  holding  their  court,  said,  they  seemed  "  very  much 
like  her  old  hen  turkey  ;  the  eggs  had  all  been  taken  away  —  still  the 
old  fool  would  keep  sitting,  and  sitting,  and  sitting." 


LIFE    OF   JUDGE    SMITH.  277 

ceedings  at  Exeter,  "  to  conduct  with  the  utmost 
mildness,  and  to  bear  with  any  acts  of  rudeness,  and 
even  insult,  offered  to  their  persons,  as  far  as  they 
deemed  consistent  with  the  honor  of  the  court  and 
the  administration  of  justice.  They  were  willing  to 
impute  many  things  to  ignorance  and  mistake." 

After  these  ineffectual  attempts  to  obstruct  its  pro- 
ceedings, the  new  court  was  allowed  to  go  on  with- 
out farther  molestation.  A  special  session  of  the 
legislature  was  called  by  Governor  Gilman,  at  which 
the  sheriffs,  who  had  refused  to  obey  the  orders  of 
the  supreme  judicial  court,  were  removed  from  office, 
but  it  was  not  thought  expedient  to  pass  any  act  with 
respect  to  Messrs.  Evans  and  Claggett.  The  old  court 
was  left  to  die  of  inanition. 

Judge  Smith  had  accepted  his  office  with  the  un- 
derstanding that  he  should  be  permitted  to  give  it  up 
as  soon  as  the  new  judiciary  system  had  got  fairly 
established,  and  in  the  summer  of  1814  he  was  ex- 
ceedingly desirous  of  handing  in  his  resignation. 
But  those  in  whose  judgment  he  placed  the  greatest 
confidence,  were  altogether  averse  to  his  taking  such 
a  step.  Judge  Ellis,  his  intimate  friend,  whose  clear 
intellect  was  united  to  a  character  as  spotless  as  falls 
often  to  the  lot  of  man,  remonstrated  against  it, 
both  on  account  of  his  private  wishes  and  his  re- 
gard for  the  public  good.  Mr.  Sullivan,  Mr.  Mason, 
Mr.  Webster,  and  indeed,  almost  without  exception, 
the  whole  bar  were  of  the  same  opinion.  Mr.  Ma- 
son, in  a  letter  dated  July  10,  1814,  said :  "  I  am 
sensible  your  situation  the  past  year  has  been  un- 
pleasant and  vexatious,  and  that  the  conduct  of  the 
24 


278  LIFE    OF    JUDGE    SMITH. 

legislature  has  been  very  provoking.  I  am,  however, 
of  opinion,  in  which  Mr.  Webster  concurs,  that  you 
cannot,  consistently  with  your  duty  to  the  public, 
resign  your  seat.  Your  resignation  would  imme- 
diately throw  the  judiciary  into  utter  confusion.  By 
another  instance  of  folly  in  our  federal  legislature, 
the  council  is  so  composed  that  no  successor  could 
be  appointed.  The  council  would  agree  to  nobody 
the  governor  would  agree  to.  The  ghosts  of  Judges 
Evans  and  Claggett  would  again  rise,  and  re-act  the 
mad  pranks  of  the  last  year.  It  is  impossible  to  say 
what  would  be  the  event.  The  scene  would  be 
filled  with  nothing  but  disgrace,  in  which  we  should 
all  share.  If  you  will  permit  yourself  fairly  to  con- 
sider the  consequences,  I  think  you  cannot  come  to 
the  determination  of  resigning.  I  never  made  loud 
claims  to  any  extraordinary  share  of  patriotism.  But 
since  you  request  me  to  consider  what  I  would  do  in 
your  situation,  I  do  not  hesitate  to  say  that,  if  in 
your  situation,  and  possessing  your  talents  for  dis- 
charging the  duties  of  the  situation,  I  would  not, 
under  existing  circumstances,  resign,  the  present 
year.  I  think  you  cannot  do  it  without  endangering 
your  own  character.  Should  you,  contrary  to  my 
wishes  and  expectations,  determine  on  a  resignation. 
I  sincerely  fear  that  you,  together  with  all  good  men 
in  the  state,  would  soon  have  ample  cause  of  re- 
pentance." 

These  considerations  were  not  to  be  resisted,  and 
although  an  attempt  in  the  legislature  to  increase  his 
compensation  had  been  unsuccessful,  and  he  could 
continue  in  office  only  at  great  personal  sacrifice,  his 


LIFE     OF     JUDGE     SMITH.  279 

duty  was  too  plain  to  be  mistaken,  and  he  remained 
in  his  place.  His  course  was  distinguished  by  the 
qualities  which  had  before  marked  his  judicial  con- 
duct, and  notwithstanding  the  circumstances  under 
which  he  had  been  appointed,  he  enjoyed  the  same 
confidence  as  before  on  the  part  both  of  the  public 
and  the  bar. 

In  the  spring  of  1816,  Judge  Smith  met  with  a 
severe  loss  in  the  death  of  his  intimate  friend  and 
associate,  Judge  Ellis.  There  was  no  public  man  to 
whom  he  was  more  sincerely  attached,  or  whom  he 
remembered  as  long '  as  he  lived,  with  warmer  affec- 
tion and  respect.  In  his  charge  to  the  grand  jury  in 
1816,  the  chief  justice  gave  an  interesting  sketch  of 
his  friend's  judicial  character,  marked  by  a  deep  and 
solemn  sense  of  what  he  and  the  whole  community 
had  lost  in  his  death. 

In  1816,  the  republican  party  came  again  into 
power,  and  having  never  acquiesced  in  the  judiciary 
act  of  1813,  as  constitutional,  one  of  their  first  mea- 
sures was  to  rescind  it,  and  Mr.  Smith  found  himself 
again  a  practising  lawyer.  His  business  returned  to 
him,  and  he  was  able,  in  a  few  years,  to  lay  up  the 
competency  he  had  desired  as  a  provision  for  old  age. 
But  another  generation  had  come  forward  at  the  bar, 
some  of  whom  took,  perhaps,  a  malicious  satisfaction 


1  When  nearly  twenty  years  afterwards,  a  young  man,  whose  Christian 
name  was  Caleb  Ellis,  applied  to  be  admitted  as  a  beneficiary  at  Phil- 
lips Exeter  Academy,  Judge  Smith  asked,  with  a  good  deal  of  feeling, 
if  any  but  a  worthy  youth  could  bear  that  name,  and  acknowledged  that 
he  could  not  help  being,  by  this  circumstance,  prepossessed  in  favor  of 
the  application.  - 


280  LIFE     OF     JUDGE     SMITH. 

in  goading  and  irritating  as  an  advocate,  one  to  whose 
authority  as  a  judge,  they  had  been  obliged  to  sub- 
mit. He  had  never  been  more  able  or  a  more  for- 
midable opponent  than  at  this  time  ;  but  he  had  spent 
too  large  a  portion  of  his  life  in  a  different  station  to 
retain  a  keen  relish  for  the  warfare  that  belongs  to 
the  profession.  It  may  be,  too,  that  there  was  no 
great  cordiality  of  feeling  between  himself  and  the 
newly  appointed  court.  On  one  occasion,  a  smart 
young  lawyer  was  indulging  in  the  most  unbecoming 
abuse,  commenting  on  his  personal  appearance,  and 
particularly  on  his  old  drab  surtout,  in  a  manner 
which  the  court  plainly  ought  to  have  rebuked.  Af- 
ter bearing  it  for  some  time,  Mr.  Smith,  in  that  tone 
of  cutting  irony  which  he  knew  so  well  how  to  use, 
dryly  said,  "  As  the  court  consider  this  decent,  I  of 
course,  am  bound  so  to  regard  it."  It  is  easy  to  un- 
derstand how,  under  such  circumstances,  with  the 
feelings  and  habits  which  he  must  have  acquired  as  a 
judge,  and  the  ill-natured  allusions  that  were  often 
made  to  his  former  position,  the  ordinary  practice  at 
the  bar  might  have  become  exceedingly  irksome  to  him. 
Once,  on  coming  out  of  the  court-house,  he  said  to 
an  old  acquaintance,  that  if,  on  leaving  this  world  he 
should  be  obliged,  as  a  retribution  for  his  sins,  to  re- 
sume the  practice  of  the  law,  he  should  say  with 
Cain,  "  My  punishment  is  greater  than  I  can  bean" 
The  following  anecdotes,  which  are  told  of  Mr. 
Smith,  savor  more  of  the  ready  wit  of  the  advocate 
than  the  severe  truthfulness  of  the  judge.  In  a  cause 
which  he  was  to  argue,  a  man  by  the  name  of  Haines 
was  an  important  witness  on  the  opposite  side,  and 


LIFE     OF     JUDGE     SMITH.  281 

many  witnesses  had  been  introduced  to  show  that  no 
reliance  could  be  placed  upon  his  testimony.  In 
opposition  to  these  witnesses,  one  Trueworthy  Gove 
Dearborn,  a  man  of  some  little  consequence,  testified 
that  Haines  was  a  man  to  be  relied  upon.  Mr. 
Smith  in  his  argument,  speaking  of  the  strong  evi- 
dence against  Haines's  character,  concluded  by  say- 
ing, "All  who  have  ever  known  him,  testify  in  the 
most  decided  manner  that  he  is  not  to  be  trusted, 
except  Trueworthy  Gove  Dearborn  —  a  man  just  like 
him."  This  was  spoken  in  the  most  contemptuous 
manner,  and  as  if  the  witness  were  utterly  unworthy 
of  notice,  not  a  word  was  added.  Mr.  Dearborn,  as 
was  natural  enough,  was  exceedingly  angry,  and,  de- 
termining to  be  revenged,  went  to  Mr.  Smith's  lodg- 
ings, and  told  him  that  he  should  bear  such  insult 
and  abuse  from  no  man,  however  elevated  his  posi- 
tion. Mr.  Smith,  with  a  most  good-humored  and 
comic  expression,  replied,  "  What  did  I  say  ?  You 
testified  that  Haines  was  a  man  of  excellent  charac- 
ter, and  I  said  that  you  were  just  like  him." 

Mr.  Mason  once  told  Mr.  Smith  that,  having  been 
recently  looking  over  the  criminal  calendar  of  the 
English  courts,  he  was  surprised  to  find  there  so 
many  persons  bearing  his  name,  and  asked  how  it 
happened.  "  Oh,"  said  he,  "  when  they  got  into 
difficulty,  they  took  the  respectable  name  of  Smith  ; 
but  it  generally  turned  out  that  their  real  name  was 
Mason." 

Mr.  Smith  lost  the  last  cause  that  he  ever  argued. 
On  coming  out  of  the  court-house,  he  said  to  some 

one  near  him,  that  if  that  fool  of  a  P ,  (one  of  his 

24* 


282  LIFE     OF     JUDGE     SMITH. 

witnesses,)  had  not  sworn  so  badly,  his  client  would 
have  got  his  cause.  The  remark  was  repeated  by 
some  good-natured  friend  to  Colonel  P ,  who  af- 
ter several  years,  and  being  reduced  to  extreme  pov- 
erty, called  on  Mr.  Smith.  Having  enjoyed  himself 
very  much  during  a  long  conversation  with  him,  he 
mentioned  what  he  understood  Mr.  Smith  had  said 
of  him.  Instantly,  with  a  look  of  the  greatest  sur- 
prise, Mr.  Smith  inquired,  "  Now,  Colonel  P ,  I 

put  it  to  you  to  say,  does  that  sound  at  all  like 
me  ?  "  "  No,  it  does  not,  and  I  always  maintained 
that  you  never  said  it." 

Whatever  Mr.  Smith  may  have  found  at  this  pe- 
riod of  his  life  to  vex  and  irritate  him  in  the  court- 
room, he  never  carried  his  troubles  home ;  and  in  his 
practice  there  was  always  enough  of  serious  and  solid 
labor  to  give  full  employment  to  his  mind.  He  de- 
lighted to  investigate  cases  which  put  into  requisition 
all  his  knowledge  and  strength,  and  he  was  retained 
in  most  of  the  important  causes  that  came  before  the 
New  Hampshire  courts.  Of  these,  the  famous  Dart- 
mouth College  case,  was,  undoubtedly,  by  far  the 
most  important,  whether  viewed  in  relation  to  the  legal 
considerations  and  the  serious  consequences  involved 
in  it,  the  interest  it  awakened  in  the  public  mind, 
the  manner  in  which  it  was  connected  with  the  polit- 
ical action  of  the  day,  or  the  learning  and  ability  with 
which  the  rights  of  the  college  were  maintained. 
President  Brown,  whose  life  of  rare  usefulness  and 
yet  greater  promise,  was  closed  by  an  early  death, 
might  well  say,  as  he  did  in  one  of  his  last  letters  on 
the  subject  to  Mr.  Smith,  "  Whatever  depends  on 


LIFE    OF    JUDGE    SMITH.  283 

man,  I  know,  is  uncertain  ;  but  from  all  I  can  learn 
here  and  elsewhere,  I  have  a  great  degree  of  confi- 
dence, that  the  cause  is  gained.  Should  this  be  the 
event,  (and  indeed  whether  it  be  or  not,)  we  shall 
always  entertain  a  lively  sense  of  gratitude  to  those 
gentlemen,  who  '  have  stood  in  the  gap,'  and  so  no- 
bly sustained  the  contest.  And  may  we  not  forget 
our  obligations  to  Him,  who  has  bestowed  on  our 
wisest  counsellors  their  talents,  and  by  whom  '  princes 
decree  justice.'"  The  college,  in  1819,  passed  a 
vote  requesting  each  of  the  advocates,  by  whom  their 
rights  had  been  so  ably  maintained,  to  sit  for  his  por- 
trait ;  but  the  funds  of  the  institution  were  in  such  a 
state  that  the  intention  was  allowed  to  pass  for  the 
deed,  till,  in  1835,  it  was  carried  into  effect  by  one 
whom  the  poor  and  the  fatherless,  and  he  that  was 
ready  to  perish,  will  remember  with  grateful  benedic- 
tions at  that  hour  when,  of  all  our  actions,  the  thought 
only  of  what  we  have  done  for  others  can  bring  con- 
solation or  support.1 


1  The  advocates  of  the  college  were  Jeremiah  Smith,  Jeremiah  Mason, 
Daniel  Webster,  and  Thomas  Hopkinson. 


CHAPTER    X. 

1820. 

RETIRES      FROM      BUSINESS  FORTUNE  FAMILY  

TEMPERAMENT  OCCUPATION    IN    RETIREMENT. 

IN  v  1820,  having  now  reached  the  sixty-first  year 
of  his  age,  Judge  Smith  (for  though  no  longer  hold- 
ing the  office,  he  was  always  called  by  that  title,) 
withdrew  from  the  active  duties  of  his  profession,  in 
order  to  spend  the  remainder  of  his  days  in  those 
tranquil  pursuits  and  enjoyments,  which  are  the  fit- 
ting close  of  a  laborious  life.  Few  men  have  retired 
from  business  with  more  ample  resources  for  a  useful, 
serene,  and  happy  old  age. 

His  health  was  better  than  it  had  been  since  he 
entered  upon  public  life.  His  fortune,  the  fruit  of 
his  own  industry  and  a  judicious  economy,  through 
many  years  of  public  and  private  usefulness,  was  all 
that  he  desired.  In  early  life  he  had  been  much  in- 
terested in  the  business  of  his  brother  Samuel,  a 
man  of  great  enterprise,  who  did  more,  perhaps, 
than  any  other  person,  to  introduce  manufactures 
into  New  Hampshire.  For  more  than  ten  years  he 


LIFE    OF    JUDGE    SMITH.  285 

placed  in  his  brother's  hands  all  that  he  laid  up  from 
his  profession.  At  a  later  period,  when  Samuel  had 
become  exceedingly  embarrassed  in  his  affairs,  he 
volunteered,  though  expecting  to  suffer  heavy  losses 
by  it,  to  be  surety  for  him  to  the  amount  of  all  that 
he  possessed  ;  and  when  his  brother's  affairs  had  taken 
a  more  prosperous  turn,  in  his  final  settlement,  he  gave 
him  outright  ten  thousand  dollars,  having  never  at 
any  time  received  a  cent  by  way  of  profit  from  their 
connexion.  Mrs.  Smith  was,  on  the  death  of  her 
mother,  entitled  to  a  share  of  a  considerable  estate, 
but  nothing  was  ever  received  except  the  privilege, 
and  such  her  husband  always  considered  it,  of  giving 
her  two  sisters  a  home  for  ten  years.  But  in  their 
domestic  arrangements  they  had  no  foolish  ambition, 
and  exercising,  at  all  times,  a  careful  and  judicious 
economy,  they  were  able  to  lay  up  what  was  suffi- 
cient for  their  own  wants,  with  something  to  spare 
for  charity. 

In  his  family  Judge  Smith  was  particularly  fortu- 
nate. Mrs.  Smith,  a  woman  of  good  sense,  and  of 
a  refined  and  delicate  nature,  though  of  a  slender 
constitution,  was  always  a  devoted  wife  and  faithful 
mother.  Their  son,  William,  born  the  31st  of  Au- 
gust, 1799,  was  possessed  of  rare  natural  endow- 
ments, and,  at  the  time  when  his  father  withdrew 
from  the  profession,  gave  promise  of  distinguished 
success.  His  life,  if  it  could  be  given  from  its  com- 
mencement to  its  close,  would  furnish  a  sad,  but 
interesting  and  instructive  example  to  that  large  class 
of  young  men,  who,  without  fixed  principles  or  con- 
firmed habits  of  industry,  hope  by  birth,  genius,  or 


2OO  LIFE    OF    JUDGE    SMITH. 

some  rare  combination  of  fortunate  circumstances,  to 
win  the  prizes  of  life.  He  had  unusual  quickness 
of  parts,  and  while  at  Exeter  Academy  appeared  to 
great  advantage  in  his  studies.  He  entered  Harvard 
College  when  very  young,  and  had  not  strength  to 
resist  the  unfavorable  influences  of  the  place,  but 
neglected  his  lessons,  was  preyed  upon  by  evil  asso- 
ciates, wasted  his  time  and  money,  and  without  any 
decidedly  vicious  habits,  was  twice  suspended  during 
his  college  course,  and  finally  took  his  unhonored 
degree  in  1817.  His  letters,  written  to  his  friends 
at  home  during  this  time,  show  the  deep  wretched- 
ness of  such  a  life.  He  was  constantly  resolving, 
but  without  the  energy  to  carry  his  resolutions  into 
effect  ;  suffering  all  the  anguish  of  repentance,  with 
none  of  its  better  fruits,  but  repenting  to-day,  only 
to  fall  and  repent  again  more  bitterly  to-morrow  ; 
never  losing  his  sense  of  right,  his  generous  feel- 
ings, or  his  yearning  after  intellectual  greatness, 
but  conscious  all  the  while  of  powers  to  which  he 
was  doing  no  justice,  and  of  expectations  on  the 
part  of  his  friends,  which  he  was  cruelly  disap- 
pointing ;  yet  weak  in  purpose,  and  on  account  of 
that  weakness  doomed  to  give  up  all  that  he  most 
valued  and  desired.  He  had  no  taste  for  bad  com- 
pany, but  had  not  the  manliness  to  resist  and  over- 
come its  evil  influences.  His  sympathies  were  too 
quick  for  his  safety,  and  though  he  appreciated  and 
enjoyed  the  best  society,  yet  he  was  not  secure  an 
hour  when  beyond  its  reach  ;  but  through  the  infirmity 
of  his  will,  the  strength  of  his  social  feelings  and  his 
love  of  approbation,  was  carried  away  by  the  cur- 


LIFE    OF    JUDGE    SMITH.  287 

rent  into  which  he  happened  to  fall.  His  father 
saw,  with  deep  concern,  how  all  this  must  end,  and  his 
letters,  a  singular  union  of  kindness  and  severity,  of 
wise  counsel,  tender  affection,  and  sharp  rebuke, 
evincing  that  he  was  always  ready  to  forgive  and 
overlook  the  past,  as  soon  as  any  promise  of  amend- 
ment could  be  seen,  show  how  deeply  his  feelings 
were  wounded,  and  how  much  more  he  cared  for  the 
good  of  his  child,  than  for  any  ambitious  schemes 
that  he  might  have  formed  in  connexion  with  him. 

Near  the  end  of  William's  first  year  in  college, 
his  father,  having  heard  of  his  neglecting  his  exer- 
cises, after  speaking  of  the  ruin  that  must  be  the 
mournful  but  necessary  consequence  of  such  habits, 
thus  warns  and  expostulates  :  "  Need  I  remind  you 
that  you  will  not  be  the  only  sufferer  ?  I  know  that 
errors  in  conduct  are  seldom  single.  They  are  a 
fruitful  family.  The  waste  of  money  leads  to  asso- 
ciation with  the  idle  and  dissipated It  is 

natural  that  I  should  see  beyond  the  first  act  in  this 
drama;  and  it  fills  me  with  pain  and  mortification 
I  cannot  describe,  and  which  none  but  a  parent  can 
fully  understand.  .  .  .  Write  to  me  freely,  fully. 
Let  me  see  and  know  enough  of  your  heart  to  hope 
that  the  .next  year,  if  you  should  have  a  next,  will 
give  me  more  pleasure  than  the  last.  It  is  not  dis- 
graceful to  you  to  need  a  faithful  friend,  but  ex- 
tremely wrong  to  decline  that  aid  when  offered,  es- 
pecially by  your  most  affectionate  father." 

The  following  letter  to  Mrs.  Smith,  will  give  some 
idea  of  what  he  suffered. 

"  Dover,  Tuesday  evening.     My  dear  wife  :    The 


288  LIFE    OF    JUDGE    SMITH. 

unpleasant  feelings  I  had  when  I  left  you,  did  not 
forsake  me  on  the  road.  I,  even  I,  made  a  great 
mistake,  in  taking  a  sleigh.  The  road  was  ten  times 
worse  than  I  expected.  ...  I  was  near  five  hours 
on  the  road,  and  travelled  on  foot  nearly  half  the 
way.  This  heated  me,  and  the  evening  was  sharp, 
so  that  I  took  cold,  and  am  rheumatic.  But  all 
these  things  are  not  worth  regarding  ;  they  concern 
myself  only,  and  will  soon  be  over.  But  my  mind 
is  occupied  with  W.  When  I  am  from  him,  I  do 
not  feel  less  grieved  for  the  past  and  less  gloomy  as 
to  the  future  ;  but  it  is  of  a  different  and  milder  sort. 
If  children  could  only  know  what  their  parents  feel, 
when  they  see  them  travelling  in  a  road  which  they 
think  leads  to  ruin,  they  would  pause  a  little  before 
they  ventured  farther  in  a  path  with  which  they  can- 
not be  acquainted.  I  could  forgive  one  fault,  and 
another,  and  another  ;  but  a  regular  series  from  bad 
to  worse,  takes  away  all  hope.  It  is  not  yet,  thank 
God,  come  to  that.  But  everything  tends  that  way. 
All  that  is  wanting  is  time.  If  the  heart  is  callous 
at  sixteen,  what  will  it  be  at  twenty-one  ?  If  a  small 
paltry  gratification  outweighs  a  parent's  authority, 
displeasure,  unhappiness  ;  if  it  leads  to  the  sacrifice 
of  truth,  honor,  honesty,  what  will  be  the  end 
thereof,  when  the  appetite  increases  and  the  power  of 
resistance  weakens  ? 

"  I  know  you  will  say,  why  indulge  these  melan- 
choly forebodings  ?  I  do  not  willingly  indulge  them. 
Gladly  would  I  exchange  them  for  more  pleas- 
urable sensations.  But  what  shall  I  gain  by  shutting 
my  eyes  and  stopping  my  ears  ?  Do  not  deceive  me, 


LIFE    OF    JUDGE    SMITH.  289 

but  give  me  reason  on  my  return  to  hope.  But  I 
must  have  reason,  evidence.  I  cannot,  if  I  would, 
believe  against  evidence.  It  is  not  in  my  nature  to 
do  so.  I  am  too  old  to  change  ;  I  hope  he  is  not. 
Show  him  this.  Ask  him  to  give  me  a  pledge,  secu- 
rity for  his  good  conduct.  At  present  I  will  accept, 
gladly  accept,  real  contrition,  and  will  trust  to  time 
to  prove  it  genuine.  But  then  good  works  must  fol- 
low immediately  and  continuedly.  He  will,  perhaps, 
wonder  that  I  speak  of  his  past  conduct  in  such 
severe  terms.  I  see  the  future.  I  could  forgive  the 
past.  I  thought  I  had  a  great  deal  to  say,  but  I  find 
I  have  only  one  single  idea..  I  can  think  of  nothing 
else.  It  is  eleven  o'clock  at  night.  God  bless  you 
all.  Heaven  knows  that  I  fervently  offer  up  this 
prayer,  and  include  W.  in  it." 

After  leaving  college,  William  read  law  in  his 
father's  office,  being  then  perfectly  correct  in  his 
conduct.  As  it  respects  reading  connected  with  his 
profession,  he  was  very  negligent  until  about  three 
months  before  he  was  admitted  to  the  bar,  when  his 
father  reminded  him  how  short  the  time  was  before 
his  examination,  and  how  ignorant  he  was  of  the 
subjects  on  which  he  was  to  be  examined.  From 
that  time  till  his  admittance,  he  applied  himself  with 
diligence,  and  his  father  was  astonished  at  the 
amount  of  knowledge  he  acquired  in  so  short  a  time. 
No  young  man  of  his  age  was  more  generally  popu- 
lar, and  there  was  no  one  of  whom  higher  expecta- 
tions were  formed.  He  was  frank  and  generous  to 
excess,  winning  in  his  manners,  animated  and  inter- 
esting in  conversation,  reading  with  a  surprising 
25 


290  LIFE     OP     JUDGE     SMITH. 

rapidity,  yet  remembering  what  he  read,  and  having 
always  at  hand  a  large  and  various  supply  of  inter- 
esting knowledge,  while  his  quick  and  active  sym- 
pathies, with  his  entire  freedom  from  anything  like 
pride  or  haughtiness,  found  their  way  to  the  hearts  of 
the  poor  and  friendless  who  might  come  within  his 
reach.  He  was  a  general  favorite  in  society,  and 
was  chosen  a  member  of  the  New  Hampshire  legis- 
lature when  only  twenty-two  years  old,  being,  as  his 
sister  said  with  becoming  pride  in  writing  to  a  friend, 
one  of  the  youngest  members  that  had  ever  been 
chosen  to  that  office. 

But  the  charm  of  Judge  Smith's  home,  and  that 
which  made  it  what  it  was  to  him,  and  those  who 
visited  it  for  years,  was  his  daughter  Ariana.  The 
connection  between  her  and  her  father  was  the  most 
beautiful  that  I  have  ever  known  between  parent  and 
child.  There  was  a  perfect  harmony,  a  sympathy 
and  union,  such  as  we  read  of  in  books  rather  than 
hope  to  find  in  real  life.  Their  characters  were 
formed  after  the  same  model,  save  only  that  hers  was 
subdued  by  the  grace  and  softness  of  her  sex.  They 
read,  conversed,  travelled  together,  she  engaging  in 
whatever  might  add  to  his  comfort,  and  he  rejoicing 
as  heartily  in  hers.  She  was  born  the  28th  of  De- 
cember, 1797.  The  unusual  name  she  bore  was  in- 
herited through  a  line  of  grandmothers  from  a  Bohe- 
mian branch  of  her  mother's  family.  Existence  was 
to  her  a  continued  romance.  She  laughed,  wept, 
studied,  went  through  the  regular  routine  of  house- 
hold cares,  had  her  little  weaknesses,  was  not  without 
some  portion  of  female  vanity,  loved  attention,  and 


LIFE    OF    JUDGE    SMITH.  291 

was  not  indifferent  to  dress,  nor  to  anything  in  which 
other  girls  took  an  interest,  and  yet  she  was  like  no 
one  else.  Her  personal  appearance  was  peculiar  to 
herself.  Her  clear  white  complexion,  contrasting 
with  her  long  black  hair  and  eye-lashes,  her  large 
blue  eyes,  looking  out  with  animation  from  a  counte- 
nance always  calm,  indicating  at  the  same  time  ex- 
citement and  repose,  were  such  as  belonged  to  no 
one  else.  Her  voice,  subdued  and  passionless,  con- 
trasted singularly  with  the  fervor  of  her  words.  Her 
devotion  to  domestic  duties,  and  particularly  to  her 
mother  through  years  of  painful  disease,  might,  but 
for  the  peculiar  elasticity  of  her  mind,  have  worn 
her  down,  yet  to  the  last  she  was  like  one  whose  life 
had  been  a  perpetual  sunshine.  Her  enthusiasm 
might  have  betrayed  her  into  indiscretions  but  for  the 
prudent  self-control  that  never  forsook  her  ;  and  the 
rare  good  sense,  that  ran  through  all  her  conduct, 
might  have  made  her  common-place  but  for  the  en- 
thusiasm of  her  nature.  The  great  extent  of  her 
reading,  and  the  accuracy  of  her  knowledge  in  the 
more  solid  as  well  as  in  the  lighter  branches  of  litera- 
ture, might  have  made  her  pedantic,  were  it  not,  as 
her  father  said,  that  she  was  more  studious  to  con- 
ceal than  to  exhibit  her  accomplishments.  "  She 
had,"  he  said,1  when  his  heart  was  wrung  with  the 
anguish  of  bereavement,  "a  mind  intelligent  and  in- 
genuous, having  learning  enough  to  give  refinement 
to  her  taste,  and  far  too  much  taste  to  make  preten- 
sions to  learning.  She  had  a  feminine  high-minded- 

1  Quoting,  in  part,  from  Moore's  Byron. 


292  LIFE     OF     JUDGE  SMITH. 

ness."  "  She  often  shined  in  conversation,  but  never 
strove  to  shine."  "  As  far  as  regards  literature,  she 
never  (in  conversation)  aimed  at  doing  her  best ;  and 
yet  she  was  not  indifferent  to  the  opinion  of  her 
father  and  her  friends."  Her  almost  passionate  love 
of  society,  and  the  attentions  with  which  she  was 
loaded,  when  in  the  fashionable  world,  by  those 
whose  attentions  are  most  flattering  to  a  woman  of 
sense  and  refinement,  might  have  made  her  giddy ; 
her  love  of  nature,  of  rural  life,  and  the  simple  inter- 
course of  the  country,  might  have  made  her  shy  and 
timid,  but  for  the  genuineness  of  her  feelings  and 
the  simplicity  of  her  character.  "  I  rely,"  said  her 
father,  "  with  entire  confidence  on  your  good  taste 
and  discretion  —  two  things  oftener  united  than  is 
commonly  thought."  At  a  large  party  in  the  city  it 
might  seem  as  if  she  had  no  heart  or  thought  for 
anything  else  ;  but  she  gladly  returned  to  the  quiet 
home,  where  almost  all  her  time  was  spent,  and  there 
appeared  as  if  she  had  never  been  absent,  or  had 
gone  abroad  only  to  bring  back  new  treasures  for  the 
enjoyment  of  her  friends.  Substantial  books  were 
read,  kind  acts  and  serious  duties  performed,  as  if 
they  were  only  a  pastime  or  amusement.  Nothing 
was  ever  said  of  them,  and  therefore  her  letters  and 
her  usual  intercourse  with  society  gave  only  the  most 
superficial  view  of  her  mind.  Her  charities,  like  the 
charities  of  Heaven,  came  often  without  revealing 
the  hand  that  brought  them.  She  was  equally  at 
home  among  different  classes  of  people.  In  conver- 
sation with  the  most  eminent  and  gifted  she  be- 
trayed no  consciousness  of  self-distrust,  and  with 


LIFE    OF    JUDGE    SMITH.  293 

the  humblest  she  exhibited  no  marks  of  pride  and 
no  appearance  of  condescension,  but  talked  and 
sympathized  with  them  as  friends.  The  woman 
who  for  several  years  had  lived  in  the  house  as  a 
cook,  she  regarded  not  merely  as  a  faithful  servant, 
but  as  a  sister.  The  poor  student  at  the  academy, 
bashful,  unformed,  and  desponding,  soon  felt  at  ease 
with  her,  and,  learning  to  look  with  more  respect 
upon  himself,  began  to  feel  new  powers  and  new 
hopes  quickening  within  him.  The  remarkable  fea- 
ture of  her  mind,  however,  that  which  stood  out 
above  all  the  rest,  which  threw  its  brightness  over 
her  whole  life,  and  which  neither  disappointment, 
nor  sickness  nor  sorrow  could  ever  shade,  was  the 
disposition  not  only  to  see  all  that  there  was  of  ex- 
cellence around  her,  but  to  view  men  and  things  in 
the  light  of  their  virtues  rather  than  through  their 
faults.  Her  thoughts  and  conversation  were  not  in- 
fected by  the  sickly  atmosphere,  nor  her  spirit  dark- 
ened by  the  sins,  of  society.  She  had  too  much 
penetration  to  be  ignorant  of  what  was  disagreeable 
or  wrong,  but  the  evil  she  saw  did  not  abide  with 
her,  and  left  no  mark  either  upon  her  countenance 
or  her  mind.  I  do  not  remember  ever  to  have  re- 
ceived from  her  an  unpleasant  or  unfavorable  im- 
pression of  any  one ;  and  in  all  her  letters,  written, 
as  many  of  them  were,  with  the  most  entire  and 
child-like  unreserve,  I  have  not  found,  except  in  a 
single  instance,  a  remark  which  could  be  construed 
into  anything  like  unkindness  or  a  want  of  respect 
for  others.  This  charity  which  thinketh  no  evil,  and 
through  which  the  soul,  like  a  healthy  eye,  is  kept 
25* 


294  LIFE    OF    JUDGE    SMITH. 

pure  from  outward  touch,  was  not  in  her  case  a  cher- 
ished principle,  but  rather  an  original  endowment, 
disturbed  sometimes  by  momentary  jealousies  and 
rivalships,  by  wrongs  received  or  witnessed,  but 
quickly  recovering  itself,  and  going  cheerfully  along 
its  pleasant  path. 

Miss  Smith  had  grown  up  like  other  girls,  except 
that  she  was  educated  almost  without  any  formal 
system  of  instruction.  Sometimes  a  student  in  her 
father's  office  would  instruct  her,  and  she  spent  a 
short  time  at  school  at  Portsmouth,  where  she  was 
not  subjected  to  the  uncertain  influences  of  a  board- 
ing-house, but  enjoyed  the  kind  and  almost  parental 
hospitality  of  Mr.  and  Mrs.  Mason.  But  while  her 
father  was  at  home  she  was  his  constant  companion, 
reading  the  same  books,  interested  in  whatever  con- 
cerned or  interested  him,  her  taste  and  character 
formed  more  through  his  influence  than  through  all 
others  combined.  As  a  young  girl,  she  might  be 
seen  romping  through  the  fields,  riding  upon  a  load 
of  hay,  or  assisting  her  mother,  who  was  extremely 
fond  of  gardening,  and  who,  during  the  summer, 
spent  no  small  portion  of  her  time  in  the  open  air, 
adorning  the  grounds.  Books,  however,  were  Ari- 
ana's  especial  delight,  and  when  she  first  grew  up, 
her  parents  would  say  to  each  other,  "  What  can  we 
do  for  this  girl  ?  What  can  we  buy  for  her  ?  She 
cares  nothing  about  dress  as  other  girls  do."  But 
this  indifference  to  dress,  and  exclusive  preference 
for  books,  passed  away  as  she  mingled  more  with  the 
world. 

Ariana's  letters  to  her  young  friends  show  an  en- 


LIFE     OP     JUDGE     SMITH.  295 

thusiastic  and  romantic  attachment  to  her  father. 
May  11,  1820.  "  I  particularly  like  the  end  of  May, 
and  beginning  of  June,  to  receive  my  friends,  because 
my  father  is  then  certainly  at  home."  April  10, 

1821.  "  My  father  leaves  us  next  Monday,  for  many 
weeks.     I  hope  you  will  pity  our  desolate  state,  and 
enliven   us   by    frequent   letters."      July   17,    1821. 
"  My  dear  Mary,  you  don't  know  how  much  father 
misses  the  fair  hand  that  used  to  shower  upon  him 
rose-buds  last  summer.     He  continues,  however,  to 
wear  a  bouquet,  which  is  regularly  changed  twice  a 

day Coming  out  of  church   Sunday,  and 

looking  round  to  see  father,  I  recognized  him  by  his 
beautiful  nosegay  of  pinks  and  rose-buds."     May  23, 

1822.  "  I  am  writing  with  a  pen  of  father's.     What 
gallant  and  sincere  sayings  it  would  trace,  if  guided 
by  its  master's  hand  ;  but  he  is  long  since  asleep,  and 
I  must  content  myself  with   sending  our  plain  and 
unornamented   thanks,  love,  respects,  good  wishes, 
&-c.  to  all  your  family."  ' 

In  1809,  Judge  Smith  had  moved  a  little  out  of 
the  village  to  an  estate  which  he  had  recently  pur- 
chased, and  on  which  he  continued  to  live  more  than 
thirty  years.  It  was  a  pleasant  spot,  with  deep  woods 
in  the  rear,  long  fields  and  pastures  extending  above, 
and  the  town  of  Exeter  below  ;  a  place  of  almost 
perfect  retirement,  and  yet  near  the  abodes  of  men. 


1  These  extracts  are  all  from  letters  to  Miss  Mary  J.  Holmes,  daugh- 
ter of  the  Rev.  Abiel  Holmes,  D.  D.,  of  Cambridge,  and  afterwards  the 
•wife  of  Usher  Parsons,  M.  D.,  of  Providence.  She  died  in  the  summer 
of  1824. 


296  LIFE     OF     JUDGE     SMITH. 

As  lime  passed  on,  new  beauties  were  constantly 
growing  up  under  Mrs.  Smith's  care,  and  every  tree, 
shrub,  vine  and  flower,  the  arbors,  and  the  walks 
leading  back  into  an  almost  measureless  extent  of 
wood,  bore  marks  of  her  taste,  and  were  the  fruits  of 
her  constant  personal  attention.  The  pleasantest  part 
of  the  house,  and  indeed  of  the  estate,  was  the 
library,  a  large  room  filled  with  books,  which,  while  it 
served  as  an  office  for  the  judge,  was  always,  but 
more  especially  after  he  had  given  up  business,  open 
to  all  the  family  and  their  visiters.  Here  the  daugh- 
ter delighted  to  store  her  mind  with  knowledge  ;  here 
the  judge  went  through  his  severest  labors,  and  here 
their  "  idle  hours  "  were  "  not  idly  spent,"  while  some 
new  work  of  taste  or  fancy  was  read  aloud,  and  the 
reading  often  suspended  to  ascertain  the  exact  mean- 
ing or  pronunciation  of  some  doubtful  word,  to  search 
for  information  that  might  clear  up  some  dark  allu- 
sion, or  to  make  room  for  such  remarks  as  were  sug- 
gested by  what  they  read.1 

Such  was  Judge  Smith's  family  when  he  retired 


i  No  account  of  Judge  Smith's  family  at  that  time  would  be  complete, 
which  failed  to  make  honorable  mention  of  the  cats,  which  varied  at 
different  times,  from  one  to  five  in  number.  The  judge  would  take  up 
half  an  hour  or  more  at  the  breakfast  table,  in  detailing,  perhaps,  a  long 
conversation  which  had  been  overheard  among  these  interesting  in- 
mates, describing  sometimes  their  own  troubles  or  loves,  and  sometimes 
commenting  on  the  motives  and  conduct  of  others.  The  humor  of  these 
extempore  fables  was  often  irresistible,  and  not  a  little  sly  satire  and 
instruction  as  well  as  amusement,  was  administered  by  the  sagacious 
cats  to  other  members  of  the  household.  From  J.  S.  to  his  daughter, 
January,  1818  :  "The  fifth  member  of  our  fireside  party  says,  or  seems 
to  say,  that  she  wishes  you  at  home,  and  regrets  that  she  was  not  taught 
to  write,  that  she  might  communicate  with  you  at  Boston.  So  you  see 
you  are  kindly  remembered  by  all." 


LIFE     OF     JUDGE     SMITH.  297 

from  business,  and  very  few  are  the  households  which 
contain  such  materials  for  instruction  and  happiness, 
or  such  resources  for  the  autumn  of  life.  There  was, 
withal,  a  sort  of  romantic  interest,  which  I  have  heard 
described  by  young  persons,  who  occasionally  visited 
them  from  abroad,  as  perfectly  fascinating.  "  I  first 
became  acquainted  with  the  family,"  says  a  lady  who 
knew  well  how  to  appreciate  them,  "in  1818,  and 
made  a  little  visit  at  their  happy  home,  which  was 
repeated  in  1824,  and  the  image  upon  the  part  of  the 
judge,  of  fatherly  tenderness  and  conjugal  reverence 
as  well  as  affection,  of  filial  devotion  in  Ariana,  and 
of  matronly  composure  in  Mrs.  Smith,  united  with  so 
intimate  a  blending  of  her  own  being  in  that  of  her 
husband  and  children,  as  to  render  her  almost  uncon- 
scious of  her  separate  existence,  has  remained  indeli- 
bly impressed  on  my  memory,  as  one  of  the  loveliest 
pictures  of  domestic  felicity,  which  it  was  ever  my  lot 
to  witness  ;  while  the  judge's  genial  humor  and  flash- 
ing wit  threw  a  halo  round  the  scene,  which  illumined 
it  like  sunlight."  It  is  believed  that  the  following  from 
a  venerable  divine '  of  great  learning,  ability  and  social 
worth,  would  be  a  fair  transcript  of  the  feelings  of 
many,  if  not  most,  of  Judge  Smith's  visiters.  "  The 
delightful  visit  at  your  hospitable  mansion,  and  the 
rich  feasting  of  the  soul,  '  from  early  morn  till  noon  of 
night,'  three  days  in  succession,  will  not  soon  be  for- 
gotten, whatever  may  be  the  future  scenes  through 
which  I  have  to  pass." 

Books  were  the  great  resource  of  Judge  Smith's 

1  The  Rev.  James  Murdock,  D.  D. 


298  LIFE     OF     JUDGE     SMITH. 

private  hours.  In  the  busiest  period,  he  had  always 
found  time  for  the  cultivation  of  letters,  and  except 
some  of  the  poets,  for  whom  he  had  little  taste,  no 
department  of  literature  was  left  unexplored.  He 
had  great  confidence  in  the  ancient  classics  as  a 
branch  of  liberal  culture,  and  preserved  to  the  last  a 
keen  relish  for  classical  allusions  and  expressions.  He 
however  attributed  to  them  no  miraculous  efficacy. 
"  Greek  and  Latin,"  he  said,  "  cannot  give  men  sense, 
if  they  have  it  not  in  their  native  language."  He  was 
intimately  acquainted  with  the  whole  field  of  English 
literature,  entering  upon  its  lighter  branches  as  a 
pastime,  and  reading  history  with  the  eye  of  a  law- 
yer, statesman,  philosopher  and  man.  But  of  all  the 
departments  of  knowledge,  out  of  his  profession,  there 
was  none  for  which  he  had  so  strong  an  original  turn, 
and  to  which  he  had  given  so  much  attention  as  the- 
ology. Few  professed  theologians  have  so  thoroughly 
investigated  the  grounds  of  natural  and  revealed  reli- 
gion, or  the  distinctive  features  of  Christianity.  Nor 
was  it  merely  as  an  intellectual  study,  that  he  had 
looked  into  these  subjects.  Whatever  may  have 
been  sometimes  inferred  from  his  peculiar  mode  of 
expression,  he  had  always  clear  convictions  of  the 
truth,  and  an  unfeigned  reverence  for  the  principles 
of  our  faith.  Though  for  many  years  the  member  of  a 
church,  he  was  never  loud  in  his  religious  professions. 
Indeed  he  was  so  disgusted  by  the  levity  with  which 
the  most  sacred  of  names,  and  the  most  solemn  of 
subjects  are  sometimes  bandied  about  by  religious 
people,  and  he  so  shrunk  from  every  semblance  of 
ostentation  or  cant,  that  it  was  not  easy  to  see  at  once 


LIFE     OF     JUDGE     SMITH.  299 

from  liis  conversation  or  outward  conduct  how  deeply 
these  things  entered  into  his  character.1 

Judge  Smith's  temperament  was  one  of  unbroken 
cheerfulness.2  He  had  gone  through  the  assaults  of 
party  violence,  he  had  borne  the  honors,  and  some- 
times experienced  the  disappointments  of  public  life, 
but  the  prevailing  sentiment,  as  he  looked  back  on 
the  past,  was  one  of  cheerful  satisfaction  and  grati- 
tude. He  carried  with  him  the  experience  of  a  long 
life,  and  the  memory  of  the  great  men  who  had  left 
the  stage,  but  who  were  still  companions  of  his 
thoughts.  Whatever  he  may  have  been  in  the  keen- 
ness of  personal  rivalship  or  the  heat  of  political  strife, 
he  retained  but  slightly  the  sense  of  personal  injury, 
and  towards  many  of  his  political  opponents,  cher- 
ished feelings  of  unusual  kindness  and  respect.  He 
was  not  haunted  by  the  consciousness  of  having  sacri- 
ficed his  sense  of  duty  or  the  public  good,  to  party 
ends  or  personal  ambition  ;  and  to  be  at  peace  with 
one's  self,  is  a  wonderful  preservative  of  kind  feelings 
towards  others. 


1  In  a  letter  to  his  daughter,  August  5,  1810,  he  says,  "  I  hope  you  at- 
tend church  regularly,  my  dear.     It  is  no  matter  -what  the  form  of  reli- 
gion is,  but  it  is  absolutely  necessary  that  we  should  have  the  substance, 
and  though  going  to  church  is  not  religion,  it  is  one  of  the  means  to  be- 
come religious." 

2  These  lines,  taken  from  Judge  Smith's  common-place  book,  seem  to 
have  been  copied  there,  because  they  so  well  describe  his  own  character : 

"  Then,  for  the  fabric  of  my  mind, 
'T  is  mair  to  mirth  than  grief  inclined  ; 
I  rather  choose  to  laugh  at  folly 
Than  show  dislike  by  melancholy  ; 
Weel  judging  a  sour,  heavy  face, 
Is  not  the  truest  mark  of  grace." 


300  LIFE     OF     JUDGE     SMITH. 

Thus  in  the  midst  of  abundance,  with  his  family 
about  him,  and  his  strength  unimpaired,  Judge  Smith 
withdrew  from  the  labors  and  cares  of  his  profession, 
carrying  with  him  to  his  retreat  those  intellectual 
tastes  and  attainments  which  dignify  the  leisure  and 
adorn  the  retirement  of  age,  and  which,  when  joined  to 
a  clear  conscience  and  a  religious  trust,  may  furnish 
inexhaustible  sources  of  occupation,  amusement  and 
thought ;  enabling  him,  who  possesses  them,  to  be 
still  extensively  useful  to  others  here,  and  to  prepare 
for  that  world  in  which  the  distinctions,  possessions, 
and  even  the  intellectual  acquirements  of  the  present 
life  shall  be  of  small  account. 

Judge  Smith  gave  some  attention  to  agriculture, 
and  it  took  him  two  or  three  years  to  finish  all  the 
professional  engagements  which  he  had  upon  his 
hands.  In  addition  to  this,  it  was  no  small  matter  to 
collect  the  debts  that  were  due  to  him  from  different 
parts  of  the  state.  The  following  extracts  from  busi- 
ness letters  to  various  persons,  in  respect  to  small 
sums  which  he  had  requested  them  to  collect,  show 
how  many  other  feelings  mingled  with  those  of  the 
collector. 

From  a  letter  to  William  Gordon,  Esq.,  the  son  of 
his  old  and  highly  valued  friend  of  the  same  name. 
January  22,  1821.  "  But  assuredly  I  have  received 
enough.  The  difference  is  not  a  compensation  for 
your  trouble.  Let  this  acquit  you  of  all  demands, 
and  carry  with  it  my  respects  to  your  good  mother, 
and  thanks  from  myself  for  your  faithful  agency  in  a 
few  small  things.  I  hope  you  will  be  faithful  in  more 
important  concerns." 


LIFE    OF    JUDGE    SMITH.  301 

To  the  Hon.  B.  J.  Gilbert.  Feb.  25,  1823.  «  Be- 
ing dead  in  law,  I  am  settling  up  as  well  as  I  can  my 
business  accounts,  &c.,  while  living.  I  send  you 
minutes  of  my  fees,  &c.,  in  three  actions.  The  sums 
are  entirely  at  your  disposal ;  fix  them  as  they  should 
be.  ...  I  am  desirous,  as  you  may  well  suppose,  of 
shuffling  off  this  mortal  coil  and  gross  concern  of  pelf, 
so  as  to  have  nothing  left  but  to  live  intellectually, 
and,  I  hope,  with  due  reference  to  the  next  state  in 
the  chain  of  being,  which,  to  a  man  of  sixty-three, 
cannot  be  far  off.  I  shall  always  cherish  the  kindest 
remembrances  of  your  acts  and  sayings,  and  the  live- 
liest wishes  for  your  happiness.  Let  there  be  no 
black  spot  in  your  escutcheon.  I  am  wonderfully 
well,  the  better  that  I  am  no  longer  a  sweeper  in  the 
Augean  stable,  or  any  other  stable.  I  sweep  my  own 
nice,  snug,  warm  room,  surrounded  by  a  goodly  num- 
ber of  excellent  old,  silent  friends,  whom  I  read  and 
enjoy  much.  Nothing  would  give  me  more  pleasure 
than  to  find  occasionally  one  talking  one,  videlicet 
yourself.  Oh  Baron,  Baron,  (non  Roma)  quando 
te  aspiciam." 

To  Richard  Fletcher,  Esq.,  Feb.  25,  1823.  "  I  need 
not  say  to  you,  (one  of  the  initiated,)  that  this  is  the 
beggarly  account  of  miserable  remnants  and  sweep- 
ings of  a  lawyer's  office.  It  proves  the  end  is  near, 
nay,  already  come,  and  I  am  most  wonderfully  well." 

To  John  Nelson,  Esq.,  Jan.  4,  1826.  "I  have 
been  always  in  the  habit  of  looking  back  at  the 
beginning  of  every  new  year.  You  will  therefore 
excuse  my  giving  you  this  trouble.  I  have  still  many 
shreds  and  parings  scattered  about,  which  I  am 
26 


302  LIFE    OF    JUDGE    SMITH. 

anxious  to  gather,  and  form  into  a  garment  for  the 
winter  of  age." 

To  the  Hon.  E.  S.  L.  Livermore.  Feb.  6,  1826. 
"  Our  friend  lately  assured  me  that  all  was  well  on 
the  score  of  taxes,  &c.,  but  as  he  at  the  same  time 
assured  me  he  was  honest,  and  I  might  safely  rely  on 
him,  (cum  multis  aliis)  I  immediately  began  to  feel 
suspicious." 

[These  suspicions  proved  just ;  and  in  general  is 
there  not  ground  for  mistrust,  when  extraordinary 
professions  of  sincerity  or  honesty  are  needlessly 
made  ?] 

To  H.  G.  Cilley,  Esq.  Jan.  1,  1827.  "  I  have  a 
judgment  against  R.  B.  Senior.  The  old  man  de- 
clined dying  at  that  time.  His  sons  applied  for 
guardianship  over  him,  to  enable  them  to  get  his 
estate  sooner  than  by  the  course  of  nature.  I  re- 
sisted, succeeded,  and  they  got  away  his  estate  by 
other  ways  and  means.  I  have  also  a  note  against 
honest  D.  H.  His  hopes  from  death  of  father-in- 
law  are  so  far  realized  that  the  good  old  man  is  dead, 
but  as  to  all  beyond,  (I  do  not  mean  the  effect  of 
death  on  the  colonel,  but  on  H.)  I  am  in  the  situa- 
tion of  the  United  States'  circuit  court,  Jay  and 
others,  as  Sewall  pleasantly  told  them,  '  Your  honors 
mean  well,  but  your  honors  don't  know.'  I  have  also 
a  note  against  N.  D.,  another  honest  man  of  your 
town,  for  money  lent  years  ago.  He  pleads  poverty, 
the  honestest  plea  he  ever  made.  I  have  pretty 
many  other  debts  in  the  same  doleful  situation.  Oh, 
how  I  have  been  gulled  by  mankind  !  But  these  are 
all  that  honor  Deerfield  with  their  permanent  resi- 
dence." 


LIFE    OF    JUDGE    SMITH.  303 

A  letter  to  Henry  H.  Fuller,  Esq.  may  serve  as  a 
specimen  of  Judge  Smith's  sprightliness,  as  well  as  of 
his  remarkable  minuteness  in  little  things.  "  Dear 
sir :  I  want  two  pairs  of  castors  or  rollers,  to  make 
my  bed  move  easily  forward  and  back,  and  cannot  find 
such  as  I  want  nearer  than  Mr.  Quincy's  great  city  of 
Boston,  and  cannot  think  of  a  less  personage  to  pro- 
cure them  for  me  than  H.  H.  Fuller,  Esq.,  counsellor 
at  law,  &c.  &c.  They  are  not  to  be  swivelled  so  as 
to  go  zigzag.  I  am  done  with  all  zigzagging,  twist- 
ing, turning,  &c.,  having  left  the  profession,  and  am 
in  the  straight  line  of  things,  and  want  rny  bedstead 
to  move  back  and  forward  in  such  a  line.  I  prefer 
iron  (cast)  to  copper  or  brass.  I  am,  for  the  reason 
aforesaid,  done  with  all  brass  composition,  &c.  They 
must  be  precisely  on  the  plan  of  window-shutters, 
only  larger;  particularly  and  essentially,  the  roller 
must  be  at  least  an  inch  or  an  inch  and  a  half,  in- 
stead of  a  half  inch  in  length ;  the  diameter,  larger 
or  smaller,  is  of  little  consequence,  and  the  gudgeon 
of  the  roller  is  -fastened  (i.  e.  plays)  in  a  projection 
from  the  plate  ;  the  plate  screws  on  to  the  shutter  or 
leg  of  the  bedstead.  This  fashion  is  preferred,  be- 
cause it  will  not  raise  the  bedstead  more  than  one- 
sixth  of  an  inch,  and,  regarding  the  place  into  which 
the  bedstead  is  to  be  placed,  I  am  limited  in  height. 
It  just  occurs  to  me  that  I  might  at  once  have  ad- 
dressed myself  to  my  friend  Deacon  May,  in  sua 
arte ;  but  then  I  must  leave  out  the  joke  on  brass, 
&c.,  and,  as  Pilate  said,  *  What  is  written  is  written,' 
to  which  I  add,  '  and  sent  to  my  friend,  and  from  his 
friend,'  J.  S." 


304  LIFE    OF    JUDGE    SMITH. 

Judge  Smith,  though  he  no  longer  practised  the 
law  as  a  profession,  still  kept  up  his  interest  in  it. 
Writing  to  Mr.  Webster,  in  1826,  respecting  Ed- 
ward Livingston's  system  of  penal  law  for  Louisiana, 
he  says  :  "  I  think  much  better  of  the  plan  of  this 
young  state  from  the  examination,  than  I  had  sup- 
posed I  should.  Indeed  I  think  it  does  great  credit 
to  Mr.  Livingston's  learning,  talents,  and  industry, 
and  I  have  a  strong  desire  to  see  and  possess  the 
whole.  It  has  occurred  to  me  that  you,  probably, 
have  the  same  desire  to  possess  these  writings,  and 
can  without  much  trouble  procure  them  for  me. 
Since  I  have  abandoned  the  law  as  a  trade,  I  have 
looked  a  little  into  it  as  a  science,  and,  I  verily 
believe,  have  as  much  pleasure  in  it  now  as  for- 
merly." This  desire  was  communicated  by  Mr. 
Webster  to  Mr.  Livingston,  who  forwarded  a  copy 
of  his  work,  in  its  then  imperfect  state,  to  Judge 
Smith,  with  the  request  that  he  would  assist  him,  by 
making  "  such  suggestions  as  might  occur  to  him  on 
its  perusal,  either  for  correcting  its  errors,  or  supply- 
ing its  omissions."  To  this  Judge  Smith  replied  : 
"  A  man  of  business  can  tell  what  he  will  do  ;  he 
may  safely  promise.  But  a  man  of  no  business  can- 
not safely  promise  that  he  will  do  anything,  and  still 
more  any  particular  thing  at  any  given  time.  Thus 
much  I  can  say,  I  shall  certainly  read  your  work, 
and  carefully  too.  I  have  read  it,  like  bills  in  con- 
gress, for  the  first  time.  If,  on  the  second  reading, 
anything  occurs  which  can  possibly  be  useful  to  you, 
I  will  note  it.  My  knitting-work,  as  my  friend 
Ames  used  to  express  it,  is  to  put  down  the  New 


LIFE    OF   JUDGE    SMITH.  305 

England  law,  where  we  have  allowed  it  to  take  the 
place  of  the  English."  I  am  not  able  to  say  whether 
any  further  communication  was  made,  and  indeed 
the  subject  is  introduced  here  only  as  an  illustration 
of  the  manner  in  which  Judge  Smith  still  kept  up 
the  study,  if  not  the  practice  of  the  science,  to 
which  his  life  had  been  devoted.  He  continued  to 
read  the  reports  of  interesting  cases,  and  it  was 
always  pleasant  to  him  to  follow  out  an  ingenious 
legal  argument.  It  was  a  great  satisfaction  to  him 
to  see  another,  nay  a  third  generation,  coming  on  and 
showing  themselves  able  not  only  to  uphold,  but  to 
advance  the  cause  of  jurisprudence.  He  seldom  ap- 
peared in  the  court-room.  The  last  time,  I  think, 
that  he  heard  a  cause  argued,  was  in  Essex  county, 
Massachusetts.  Happening  to  be  in  Salem,  during 
the  session  of  the  court,  he  went  in  to  see  how  it 
would  compare  with  former  times.  He  heard  Mr. 
Choate  in  one  of  his  earnest  and  brilliantly  logical 
arguments,  and,  though  the  style  of  speaking  was  not 
to  his  taste,  he  was  satisfied  that  there  had  been  no 
falling  off  in  legal  ability  since  the  best  days  of  the 
Massachusetts  bar. 

In  1824,  the  governor  of  New  Hampshire  wished 
to  make  Mr.  Smith  chief  justice  of  the  court  of  com- 
mon pleas,  that  office  being  then  vacant,  but  he  was 
not  willing  to  engage  again  in  public  life. 

As  in  the  law,  so  also  in  politics,  though  no  longer 
an  actor,  Judge  Smith  still  retained  his  interest,  stu- 
dying the  subject  as  a  science,  and  watching  the 
course  of  events  both  in  his  own  and  foreign  coun- 
tries. The  remarks  scattered  through  his  common^ 


306  LIFE    OF    JUDGE    SMITH. 

place-book,  on  the  public  men  and  measures  of  the 
day,  though  often  severe,  were  not,  perhaps,  more  so 
than  justice  required,  and  were  always,  I  believe, 
written  without  any  personal  feeling  of  unkind  ness. 
I  well  remember  the  flash  of  indignation  with  which 
he  commented  on  President  Jackson's  policy,  of 
making  the  places  of  all  subordinate  officers  to  depend 
on  their  political  preferences.  "  I  call  up  before  my 
mind,"  he  said,  "  Washington  asking  the  advice  of 
his  cabinet  in  respect,  for  instance,  to  a  district  at- 
torney for  New  Hampshire.  One  replies,  '  A.  is 
undoubtedly  an  honest,  capable  man,  but  he  has  done 
nothing  for  us,  and  his  remaining  there  will  have  an 
unfavorable  influence  on  your  reelection.'  If  any- 
thing could  have  made  that  great  man  so  far  forget 
himself  as  to  draw  his  sword  and  thrust  it  through 
another,  it  would  be  a  suggestion  like  this."  Gener- 
ally, however,  Judge  Smith  was  rather  entertained 
than  painfully  affected,  by  the  struggles  and  contor- 
tions of  political  parties,  and  his  comments,  whether 
in  conversation  or  in  writing,  were  little  more  than  a 
species  of  amusement.  For  example,  — 

Quoting  from  Talleyrand  :  "  The  art  of  putting 
men  in  their  proper  places  is,  perhaps,  the  first  in  the 
science  of  government,"  he  adds,  "  we  do  not  al- 
ways succeed  —  sometimes  we  send  men  to  congress 
whom  we  ought  to  send  to  the  state  prison  —  place 
men  on  the  bench  whom  we  ought  to  set  to  the  bar 
—  men  are  seen  busily  and  laboriously  thumping  the 
cushion,  who  ought  to  be  thumping  the  anvil." 

Speaking  of  Caligula's  horse  being  made  a  consul, 
Judge  Smith  adds  :  "  It  was,  perhaps,  not  an  unex- 


LIFE    OF   JUDGE    SMITH.  307 

pected  appointment — things  naturally  enough  led  to 
it  —  the  time  may  come  when  we  shall  be  little 
surprised  to  find  a  man  elected  governor  who  can 
neither  read  nor  write.  The  horse-consul  had  a  col- 
league, and  our  illiterate  governor  may  have  a  good 
secretary,  or  ....  may  take  him  in  keeping,  and 
all  go  well." 

"  The  government  provided  a  place  (a  house, 
&c.)  for  their  governor,  Mr.  Prince,  in  1665,  about 
two  miles  from  the  centre  of  Plymouth.1  It  was 
called  '  Plain-dealing '  —  a  very  suitable  name  for 
the  governor's  residence.  How  would  the  name  suit 

the  place  of  residence  of  Governors ? 

Would  not  E P G suit  those  govern- 
ors better,  as  leading  to  no  particular  inquiries  how 
far  their  official  or  private  conduct  bore  resemblance 
to  the  name  of  their  places  of  residence  ? 

"  The  integrity  of  this  dweller  at  Plain-dealing, 
we  are  told,  was  proverbial.  Is  that  the  case  with 

,  &c.  ?  The  dweller  at  Plain-dealing,  (for  I 

love  to  repeat  the  name,)  was  also  distinguished  for 
industry,  energy,  sound  judgment,  and  his  exertions 
for  a  fixed  and  competent  support  of  an  able  and 
learned  ministry.  In  many  places  a  disposition  pre- 
vailed, to  neglect  this  important  branch  of  public 
instruction,  or  to  employ  incompetent  teachers. 
With  the  exception,  perhaps,  of  industry,  how  will 
the  three  great  governors,  indicated  above,  compare 
with  their  brother  of  the  smaller  and  more  inconsid- 
erable community  dwelling  at  Plain-dealing  ?  They 

1  Morton's  Memorial. 


308  LIFE    OF   JUDGE    SMITH. 

doubtless  greatly  exceeded  him  in  the  length  of  their 
messages,  the  number  and  ardor  of  their  professions 
of  love  for  their  dear  constituents,  and  in  the  culti- 
vation of  all  the  arts  deemed  necessary  in  these  more 
enlightened  days,  to  secure  a  reelection.  Their  poor 
simple  brother  seems  to  have  relied  altogether  on  in- 
tegrity and  plain-dealing,  and,  strange  to  relate,  was 
more  successful  than  they.  It  would  be  a  curious 
sight  to  behold  a  modern  governor,  like  Prince,  leav- 
ing his  acts  to  speak  for  themselves,  placing  all  his 
dependence  for  the  favor  of  his  constituents  on  his 
goodness,  on  his  integrity,  industry,  energy,  sound 
judgment,  and  uniform  and  constant  endeavors  to 
diffuse  through  the  community  religious  and  moral 
instruction.  I  ween  many  would  wonder  at  the 
sight,  and  be  ready  to  cry,  quis  novus  guberna- 
tor!  The  aforesaid  three  governors  would  natu- 
rally suspect  him  of  a  trick." 


CHAPTER  XL 

1820  —  1829. 
WILLIAM      SMITH  JOURNEY      TO      NIAGARA  MRS. 

SMITH'S    DEATH — ARIANA,    HER    SICKNESS    AND 
DEATH. 

WILLIAM  SMITH  was,  through  life,  an  object  of  ex- 
treme solicitude  to  his  father.  He  had  hardly  entered 
the  profession  of  law  when,  at  the  age  of  twenty-two, 
he  was  chosen  into  the  legislature,  where  he  con- 
tinued for  three  years.  From  this  time  his  thoughts 
were  given  almost  exclusively  to  politics.  He  loved 
excitement  ;  and  the  sort  of  notoriety,  that  is  so 
cheaply  purchased  by  ready  talents  and  shining  ac- 
complishments, without  any  great  amount  of  knowl- 
edge, nattered  at  once  his  love  of  approbation  and 
his  aversion  to  severe  and  long-continued  labor.  He 
was  brought  into  the  society  of  the  prominent  young 
men  throughout  the  state,  and  was  a  great  favorite 
with  them.  But  while  he  was  congratulating  himself 
on  his  success,  his  father  foresaw  that  such  a  life 
must  prove  fatal  to  his  hopes  of  distinction  at  the 
bar,  and  finally  leave  him  impoverished  in  mind  and 


310  LIFE    OF   JUDGE    SMITH. 

estate.  He  therefore  did  not  cease  to  remonstrate 
with  him,  and  to  urge  him  to  lay  deep  the  founda- 
tions of  knowledge,  and  form  habits  of  industry  and 
exactness,  before  he  allowed  himself  to  embark  on 
the  perilous  sea  of  political  contention.  "  A  young 
man,"  he  said,  "  of  capabilities  and  promise  is  treated 
with  attention  above  his  deserts  ;  he  is  rewarded 
for  what  he  is  to  be  ;  but  when  from  imbecility  of 
character,  indolence,  or  dissipation,  he  remains  sta- 
tionary, or  goes,  or  seems  to  go  back,  he  is  neglected 
and  left  to  himself.  He  has  no  longer  any  flattering 
anticipations  of  the  future.  All  the  world  see  his  fu- 
ture course,  and  already  regard  him  as  what  he  is  to  be. 
I  wish  I  had  the  power  to  picture  to  your  imagination 
yourself,  after  the  world  have  discovered  you  are 
to  be  nobody  —  a  weak  man  who,  if  he  still  retain 
the  badge  of  a  profession,  is  now  in  the  rear  of  all 
his  competitors.  He  never  competed,  so  that  every 
fellow  stepped  before  him,  at  first  treating  him  with 
a  sort  of  good  manners,  but  soon  putting  on  the  su- 
periority of  mind  over  mind,  of  knowledge  over 
ignorance." 

"  If  ambitious,  what  object  greater  than  to  be 
among  the  eminent  at  the  bar  ?  "  —  "  Without  a 
profession,  what  will  you  be  when  your  patrimony  is 
spent  ?  "  —  "  Importance  of  acquiring  early  instruc- 
tion in  a  profession  —  for  example,  law  ;  time  neces- 
sary to  master  its  intricacies."  —  "  Those  who  begin 
late,  never  become  masters." 

These,  and  other  remarks  of  a  similar  kind,  I  find  on 
loose  scraps  of  paper.  As  some  men  think  aloud  in 
broken  sentences,  so  Judge  Smith  seems  to  have  had 


LIFE     OF     JUDGE     SMITH.  311 

the  habit  of  thinking  with  a  pen,  involuntarily 
writing  down  what  was  intended  for  no  eye  but  his, 
and  sometimes  not  even  for  that.  The  following 
unfinished  draught  carries  its  own  explanation  with 
it.  It  bears  no  date,  but  must  have  been  written  in 
1823,  or  early  in  1824.  "  I  agree  that  it  is  ex- 
tremely natural  that  you  should  desire  to  be  at  Con- 
cord at  this  time.  But  I  am  opposed  to  the  gratifi- 
cation of  that  very  natural  desire,  because  I  think 
it  will  be  hurtful  to  your  advancement  in  life.  You 
are  now  too  much  engaged  in  politics,  and  too  little 
in  your  profession,  and,  if  there  is  no  change,  I  fore- 
see that  the  evil  must  increase,  and  the  chance  of 
being  a  lawyer  diminish.  It  does  not  require  the 
gift  of  prophecy  to  determine  what  will  be  the  end 
thereof.  These  two  branches  of  study,  or  pursuit, 
cannot  both  have  your  supreme  regard.  You  may 
be  an  active  politician  and  a  nominal  lawyer.  But  it 
is  as  certain  as  fate,  that  you  will  soon  cease  to  be  a 
lawyer  even  in  name.  To  me  it  is  equally  certain, 
that  on  the  best  calculation  you  cannot  live  by  pol- 
itics, and  the  chances  are  that  you  do  not  succeed. 
Your  profession  is  the  only  way  in  which  you  can 
succeed,  and  you  have  yet  to  learn  the  law  both  as  a 
science  and  an  art.  I  wpuld  not  magnify  the  diffi- 
culties to  be  overcome,  but  sure  I  am  they  will 
call  for  your  whole  strength,  and  if  you  do  not  very 
soon  set  about  the  work,  I  would  advise  you  to  aban- 
don it,  and  do  yourself  the  justice  at  once  to  avow 
it.  You  may  deceive  yourself,  but  I  see  plainly  that 
your  chances  to  be  respectable  in  your  profession  are 
less  than  they  were  two  years  ago ;  first,  because  you 


312  LIFE    OF   JUDGE    SMITH. 

are  no  farther  advanced  in  law  knowledge,  I  mean 
technical  law  ;  and  secondly,  less  inclined  to  the 
study,  because  more  engaged  in  politics.  If  you  do 
not  love  the  law  at  twenty-four,  I  see  no  reason  to 
believe  you  will  at  twenty-six,  eight,  or  thirty.  The 
small  sum  expended  on  this  excursion,  and  the  time 
spent,  are  nothing,  absolutely  nothing  in  themselves  ; 
but,  as  resulting  from  your  inclination  and  associa- 
tions and  habits,  they  are  all  important.  Cannot  you 
resist  the  inclination  to  dissipate  ?  Surely  this  is 
merely  dissipation.  When  is  your  power  of  resist- 
ance to  acquire  sufficient  strength  ?  Will  indulgence 
ever  beget  self-denial  ?  When  you  set  about  the 
law,  you  must  grapple  with  it  as  a  man  contending 
for  life.  You  are  absolutely  unfitted  for  a  dull,  col- 
lecting, business  lawyer.  Well  then  ;  you  must  be  a 
lawyer  of  the  respectable  class  or  none  at  all.  This 
visit  has  a  tendency  to  locate  you  among  the  bustling 
politicians,  and  to  fix  your  character  as  far  as  any 
act,  innocent  in  itself  at  twenty-four,  can  fix  it.  I 
do  not  say  that,  this  visit  over,  you  cannot  be  a  law- 
yer, but  that  without  a  miracle  you  will  not.  This 
visit  is  a  continuation  of  wrong-doing.  It  certainly 
is  not  a  step  in  the  way  in  which  you  must  find 
honor  and  competence,  if  you  ever  find  them.  We 
sometimes  in  imagination  contemplate  Mr.  Sullivan 
as  leaving  the  bar  —  do  you  never  ask  yourself  who 
fills  the  vatancy  ?  Do  you  ever  say,  '  is  it  I  ? ' 
Surely  no  —  but  I  can  tell  who  will.  It  will  not  be  an 
Exeter  man.  I  own  I  am  at  a  loss  to  account  for 
your  want  of  perseverance  in  legal  study.  Do  you 
not  find  pleasure  in  it  ?  Depend  upon  it,  it  is  the 


LIFE    OF    JUDGE    SMITH.  313 

pursuit  you  are  engaged  in,  added,  perhaps,  to  some- 
thing of  a  natural  want  of  energy  of  character, 
which,  and  which  alone,  prevents.  I  have  seen  with 
pleasure,  that  you  could  fix  your  attention  and  study 
for  a  week  together,  and  rejoiced,  though  I  could  not 
approve  of  the  objects  of  your  pursuit.  You  have 
a  good,  an  accurate,  retentive  memory,  not  a  slow 
apprehension,  at  any  rate  a  good,  clear  perception, 
capable  of  acquiring,  and,  though  I  do  not  think 
quite  so  well  of  your  judgment,  yet  very  capable  of 
improving  it.  You  are  capable  of  making  a  good 
lawyer,  perhaps  a  good  politician.  You  are  now, 
trust  me,  decently  furnished  in  the  one,  and  quite 
raw  in  the  other.  In  all  my  experience,  I  have 
never  known  politics  confer  law  knowledge  or  pro* 
fessional  distinction,  but  have  known  law  knowledge 
elevate  the  political  man.  The  road  to  law  is  not 
through  politics,  but  aside,  apart  from  it.  It  takes 
away,  but  never  gives.  On  the  subject  of  politics,  it 
is  material  to  state,  that  they  unfit  the  mind  for  sci- 
ence of  any  sort,  certainly  for  the  severe  science  of 
law,  logic,  or  mathematics.  As  managed  with  us, 
they  whet  and  brighten  some  of  the  faculties,  inven- 
tion, imagination,  knowledge  of  men  and  things  — 
the  talent  of  diversifying,  describing,  abusing  an  ad- 
versary, &c.,  &c.,  but  unfavorable  to  accuracy  of 
thinking,  talking,  writing,  speaking.  In  our  state 
squabbles,  a  little  knowledge,  loose  and  general,  is 
better  than  a  great  deal  of  sound  and  correct  know- 
ledge and  information." 

In  the  summer  of  1824,  William's  prospects  were 
sadly  overshadowed  through  an  act  of  momentary 
27 


314  LIFE    OF   JUDGE    SMITH. 

passion,  which  filled  him  with  grief,  and  his  friends 
with  mortification  and  sorrow.  I  cannot  learn,  from 
those  who  knew  him  best,  that  he  was  ever  a  man  of 
licentious  habits;  but  his  impulses  were  strong,  his 
powers  of  resistance  weak ;  in  an  evil  hour  he 
yielded  to  temptation,  and  was  forced  to  taste  the 
bitter  fruits  of  transgression.  He  was  overpowered 
with  shame  and  contrition.  His  father  uttered  no 
word  of  reproach,  but  received  him  as  a  child,  and 
endeavored  to  inspire  him  with  the  hope  of  regain- 
ing what  he  had  lost,  by  a  life  of  fidelity  and  active 
virtue.  He  particularly  hoped  to  bring  him  back  to 
the  neglected  duties  and  studies  of  his  profession. 
In  a  rude  fragment  which  remains  of  a  letter  written 
at  this  time,  he  says  :  "  My  dear  child,  —  for  with  all 
your  faults  you  must  be  dear  to  me,  —  it  is  my  duty 
to  watch  over  you,  and  do  all  I  can  to  conduct  you 
in  the  path  of  virtue  and  honor.  You  cannot  be  in- 
different to  me.  As  a  Christian,  a  father,  and  a  man, 
I  must  condemn  the  act  which  has  occasioned  your 
present  anxiety  and  trouble.  But  I  see  no  baseness 
in  it.  It  was  the  affair  of  passion  and  sudden  temp- 
tation. It  betrays  neither  meanness,  malice,  delibe- 
rate wickedness,  nor  dishonor.  When  you  have  re- 
pented of  it,  as  I  am  sure  you  have,  and  have  re- 
paired the  injury  as  an  honorable  man  ought  to  do, 
and  girded  your  mind  with  prudence  and  resolution 
to  meet  the  consequences,  and  obviate  their  evils  as 
far  as  possible,  you  will  then  be  as  you  were,  and  it 

is  in  this  state  I  would  commune  with  you 

I  think  that  I  feel  at  this  moment  a  thousand  times 
more  anxiety  for  your  character  and  success  in  life, 


LIFE    OF   JUDGE    SMITH.  315 

than  I  did  at  your  age  for  my  own.  I  wish  indeed  I 
had  felt  more  in  my  own  case  than  I  did.  My  heart 
was  in  the  main  right,  and  my  views  honest  and  hon- 
orable, and  I  had  a  considerable  portion  of  ambition 
to  act  well  my  part,  and  that  that  part  should  not  be  a 
mean  one  ;  and,  though  not  then  vain,'I  had  sufficient 
confidence  in  myself,  that,  with  unremitting  industry 
and  application,  I  could  be  a  lawyer,  and  have  rank 
among  the  best  of  them.  But  there  never  was  a  mo- 
ment when  I  thought  of  success  as  possible  without  con- 
stant application.  If  I  could  now  go  back  to  twenty- 
five,  the  chief  difference  between  the  course  I  pur- 
sued and  the  one  I  wish  you  to  adopt,  would  consist 
in  the  manner  in  which  I  would  exercise  my  talents. 
I  would  be  systematic,  accurate,  more  attentive  to  my 
manners,  aim  at  accuracy  and  some  ornament  in 
speaking,  writing,  and  conversing.  I  would  spend 
IQSS  time  in  some  branches  of  learning,  and  have 
more  for  others.  But  to  return  from  this  digression, 
the  first  thing  is  to  form  an  estimate  of  your  powers 
of  mind,  your  temper,  particular  disposition." 

Here  the  sketch  abruptly  ends.  I  do  not  know 
whether  it  was  ever  written  out  in  full,  and  forwarded 
to  William. 

The  offence  committed  was  one  which  the  com- 
munity are  only  too  ready  to  overlook  in  a  man. 
To  William's  friends  and  to  himself  it  was  the  source 
of  bitter  anguish,  —  more  especially  to  his  sister,  to 
whom  he  was  tenderly  attached,  and  who,  with  all  a 
sister's  pride,  had  rejoiced  in  her  brother's  accomplish- 
ments and  success.  His  position  in  society  was  not 
permanently  changed,  and  his  father's  apprehension 


316  LIFE    OF    JUDGE    SMITH. 

was,  that  the  impression  might  pass  by  without  the 
effect  which  it  ought  to  have  in  turning  his  attention 
more  entirely  to  his  profession.  It  was  in  the  fall  of 
1825,  that  I,  then  a  boy  in  the  academy,  first  became 
acquainted  with  William  Smith.  He  was  interested 
in  the  students,  attended  the  meetings  of  their  so- 
ciety, and  took  a  part  in  their  debates,  where  he  con- 
tributed not  a  little  to  quicken  their  literary  enthu- 
siasm. His  manners  among  us  were  exceedingly 
attractive,  his  advice  always  judicious,  and  his  influ- 
ence good.  He  felt  for  and  encouraged  those  who 
were  struggling  with  adverse  circumstances.  I  re- 
member one  of  our  number,  a  destitute  young  man 
from  the  country,  who  was  prostrated  by  a  long  and 
dangerous  illness.  William  watched  with  him,  saw 
that  he  had  whatever  might  contribute  to  his  comfort, 
and  did  not  forget  him  when  the  delirium  and  weak- 
ness of  disease  were  over.  There  was  a  gentleness 
in  his  motions,  a  softness  in  the  tones  of  his  voice, 
which,  coming  as  they  did  from  a  kind  heart,  made 
his  attentions  particularly  grateful  in  a  sick  room. 
He  was  of  a  generous,  confiding  nature,  willing  to 
give  up  what  was  for  his  own  ease,  and  gaining  the 
confidence  of  those  younger  than  himself,  by  letting 
them  freely  into  his  own  feelings  and  plans.  And 
their  confidence  was  not  abused ;  for,  however  he 
may  have  fallen  short  of  what  he  sought,  he  aimed  at 
what  was  high,  and  made  them  the  sharers  of  his 
hopes,  not  his  partners  in  failure  and  defeat.  I  have 
never  known  a  man  whose  conversation  was  more 
fastidiously  pure,  or  who  was  more  open  to  the  finer 
and  better  impulses  of  humanity.  But,  like  Burns 


LIFE    OF    JUDGE    SMITH.  317 

and  a  thousand  others  of  the  same  temperament,  he 
was  weak,  and  therefore  his  life  presented  a  series  of 
magnificent  aspirations  and  mortifying  disappoint- 
ments ;  —  of  plans  entered  upon  with  an  enthusiasm 
which  could  not  be  sustained,  and  ending  only  in 
small  and  sad  results. 

This  weakness  his  father  held  up  to  him  with  all 
the  mournful  consequences  that  must  ensue.  "  It  is 
the  common  error  of  young  men  to  aspire  to  be  dis- 
tinguished, though  they  will  not  use  the  means ;  to 
be  impatient  to  be  everything  at  once.  They  hate 
the  thorny  road.  Ignorance  will  do  well  enough 
for  a  boy  from  eighteen  to  twenty-five,  rosy,  healthy, 
animated,  lively,  all  bagatelle  ;  but  it  is  most  unbe- 
coming in  the  middle  of  life,  especially  when  the 
owner  of  it  happens  by  mistake  to  get  into  office,  as 
sometimes  happens.  It  is  dreadful  in  old  age ;  it 
adds  contempt  to  the  feelings  of  the  spectator.  He 
is  now  poor  indeed  ;  all  the  revelry,  gaiety,  fun  of 
life  is  gone,  and  ignorance  and  hard  features,  aches, 
pains  only  remain.  In  youth  all  within  was  spirit,  all 
without  gaiety.  Now,  all  within  and  without  is  a 
dreary  blank.  Depend  upon  it,  the  world  will  take 
care  to  shun  you.  There  is  nothing  in  you  they  can 
desire,  and  nothing  they  will  desire.  You  must 
depend  on  your  resources,  and  having  none,  must 
mentally  go  to  the  poor-house." 

For  a  time,  Judge  Smith  seems  to  have  hoped  that 
the  severe  shock  which  his  son  had  sustained,  might 
be  the  means  of  working  a  revolution  in  his  charac- 
ter. But  habits  of  persevering  industry  are  not  easily 
formed,  even  by  the  strongest  minds,  after  so  many 
27* 


318  LIFE    OF    JUDGE    SMITH. 

years  of  mental  dissipation  and  indulgence  ;  and 
where  there  is  weakness  to  begin  with,  the  reforma- 
tion, though  not  hopeless,  is  exceedingly  difficult. 

It  would  be  wrong  to  infer,  from  what  has  been 
said,  that  William  was  an  idler ;  his  time  was  filled 
up  with  employment.  The  extent  of  his  reading 
was  immense ;  but  usually  without  method,  plan,  or 
object,  and  therefore  failing  to  impart  wisdom  or 
strength.  He  wrote  with  facility  and  with  force, 
taking  always  on  moral  and  political  subjects  the  side 
which  he  believed  most  favorable  to  order,  religion, 
virtue,  and  all  the  best  interests  of  society.  A  fourth 
of  July  oration,  an  address  before  the  Rockingham 
Agricultural  Society,  an  essay  on  raising  by  law  the 
means  of  supporting  the  ministry,  remarks  on  the 
assassination  of  Julius  Caesar,  with  numerous  news- 
paper articles,  some  of  which  were  extensively  copied 
through  the  United  States,  are  among  the  writings 
which  bear  honorable  testimony  to  his  mind  and 
heart.  He  began  a  history  of  Exeter,  and  made 
extensive  and  laborious  researches  among  original 
documents.  He  was  engaged  on  this  his  favorite 
work,  when  interrupted  by  sickness,  and,  till  within 
a  few  weeks  of  his  death,  he  cherished  the  hope  of 
resuming  and  completing  it. 

William's  most  serious  failing  was  an  utter  reck" 
lessness  about  money.  It  appears  as  if  he  had  and 
could  have  no  idea  of  its  use  or  value.  His  expenses 
in  college  were  unreasonably  large.  After  he  was 
admitted  to  the  bar,  though  he  received  liberally  from 
his  father,  he  was  constantly  embarrassed  with  debt. 
Nor  did  he  learn  from  experience ;  but  the  more  he 


LIFE    OF    JUDGE    SMITH.  319 

suffered,  the  more  prodigal  were  his  habits.  This 
touched  his  father  in  a  tender  point ;  for  if  there  was 
anything  on  which  he  prided  himself,  it  was  a  severe 
justice  and  promptness  in  all  his  pecuniary  engage- 
ments. Nothing  could  be  more  annoying  than  the 
applications  that  were  constantly  coming  to  him  for  the 
payment  of  his  son's  debts.  But  as  the  difficulty  went 
on  increasing,  he  saw  that  the  only  way  of  stopping  it 
was,  to  let  him  suffer  the  mortifying  consequences  of 
such  conduct.  He  warned  him  of  the  course  he  should 
pursue,  but  without  effect.  William  was  soon  ha- 
rassed and  beset  with  creditors.  His  situation  preyed 
upon  his  spirits,  haunted  his  dreams  ;  yet  he  went 
on  in  the  same  thoughtless  expenditures,  suffering, 
repenting,  but  not  reforming.  As  must  always  be 
the  case  with  those  who  allow  themselves  to  continue 
thus  unfaithful  to  their  pecuniary  engagements,  he 
was  not  only  harassed  and  tormented,  but,  without 
intending  it,  guilty  of  injustice  towards  others.  In 
one  or  two  instances,  he  applied  to  his  own  use  the 
money  which  he  had  received,  as  an  attorney,  for  his 
client ;  and  once  he  spent  the  money  which  he  had  re- 
ceived in  trust  as  a  guardian.  The  sums  were  small, 
and,  of  course,  he  expected  and  intended  to  replace 
them  in  season  ;  but  he  had  not  the  power.  Some 
hint  of  these  difficulties  came  to  his  father,  and  it 
was  the  most  cutting  thing  that  he  had  been  called 
to  endure.  For  a  man  with  his  ideas  of  professional 
honor  to  see  not  only  the  honest  tradesman  deprived 
of  his  due,  but  the  orphan  kept,  even  for  a  few  weeks, 
out  of  her  inheritance  by  the  guardian  whom  she 
had  chosen  to  protect  her,  and  that  guardian  a  son  of 


320  LIFE    OF    JUDGE    SMITH. 

his,  was  more  than  even  his  philosophy  could  bear 
with  patience.  In  a  letter  to  his  daughter  he  says, 
"  Oh  that  W.  had  any  —  the  smallest  firmness  of 
mind ;  that  he  could  do  and  forbear  according  to  the 
dictates  of  his  judgment.  I  am  sure  I  do  not  have 
credit  for  the  tithe  of  that  delicacy  and  tenderness  I 
really  possess.  When  I  saw  Mr.  Dow,  Monday  even- 
ing, alone,  I  could  not  find  it  in  my  heart,  for  fear  of  the 
answer,  to  ask  him  if  W.'s  saying  to  his  wards  about 
the  loan  of  their  money  to  him,  were  true.  And  he 
could,  young,  do  what  I,  hackneyed  and  hardened 
in  the  ways  of  the  world,  could  not  even  talk  about. 
Why  should  there  be  any  doubt  ?  It  is  not  much 
worse  to  defraud  a  ward,  a  tender,  confiding  ward, 
than  a  client,  of  his  money  —  the  word  defraud  is  a 
hard  one,  let  it  be  '  work  them  out  of  it.' 

"  I  fear  I  shall  not,  unless  for  special  cause,  be 
able  to  see  you  this  week,  or  till  Sunday.  Though 
I  do  not  pray  publicly  as  I  ought,  yet  in  heart  I  sin- 
cerely pray  that  you  may  be  enabled  to  do  all  your 
duty  on  this  occasion,  though  much  at  my  expense. 
I  cannot  but  hope,  (perhaps  the  word  is  a  little  too 
strong,)  that  with  the  return  of  bodily  strength,  W. 
may  acquire  new  vigor  of  resolution,  new  mental 
firmness.  Without  some  such  hope  the  heart  would 
break.  It  gives  me  some  relief  to  commune  thus 
with  you.  God  bless  you,  my  dear  child  and  friend." 

I  find  detached  and  broken  sentences,  written  on 
scraps  of  paper,  sometimes  in  the  midst  of  other 
things,  intended  probably  for  no  one  to  see,  which 
show  how  keenly  he  suffered.  "  To  be  a  father,  for 
all  purposes  of  pain,  anxiety,  providing,  disgrace,  &c. 


LIFE     OF     JUDGE     SMITH.  321 

but  not  for  filial  care,  soothing,  honor,  comfort." 
"  To  avoid  acts  of  folly  and  imprudence,  it  is  neces- 
sary to  taste  the  punishment  that  follows  them." 
"  What  a  pity  the  boy  could  not  foresee  this  to  save 
the  man  !  A  little  diligence  then  would  have  en- 
sured success."  "  Not  strong  passions,  but  remark- 
ably weak  powers  of  resistance  —  no  rudder  —  light 
wind  carries  him  whithersoever  it  will."  "  Some- 
thing or  nothing  —  must  be  total,  radical  change  — 
present  course  ends  in  0."  "  You  may,  if  you  please, 
sneak  through  life  very  much  like  nine-tenths  of  your 
fellow-men,  and  the  scorn  of  the  remaining  one  tenth, 
the  world  certainly  none  the  better  for  you,  and  you 
none  the  better  for  existence.  What  if  one  cabbage- 
plant  the  less  ?  "  "  Here  lies  a  man  who  lived  in  vain, 
the  world  none  the  better  for  him,  he  the  worse  for 
the  world."  "  If  our  young  men  are  ruined  because 
born  to  expectations,  the  error  is  full  of  disgrace  to 
them."  "  You  will  not  study  the  law,  therefore  can 
never  be  a  lawyer.  You  will  not  pretend  to  have 
studied  political  economy,  the  science  of  politics, 
government,  legislation,  finance,  taxation,  revenue, 
the  financial  system  of  the  United  States." 

"  '  I  grieve  to  say  his  conduct  has  been  such  as 
not  to  be  justified  even  by  his  father.'  And  will  a 
father  be  easier  satisfied  than  a  stranger  ?  Harder 
to  justify  to  a  father,  says  J.  S."  Those  who  have 
read  the  preceding  pages  will  not  question  the  truth 
of  this,  and  it  should  lead  us  to  receive,  not  without 
some  abatement,  the  estimate  he  has  given  us  of  his 
son.  For  he  compared  him,  not  with  other  young 
men,  nor  with  what  is  usually  attained,  but  with  the 


322  LIFE     OF     JUDGE     SMITH. 

high  standard  which  he  had  set  up  for  him,  and  which 
he  knew  that  his  talents  rightly  employed  would  en- 
able him  to  reach.  He  did  not  make  the  allowance 
that  should  be  always  made,  and  which  no  one  was 
more  ready  to  make  in  other  cases  than  he,  for 
youthful  inexperience  and  indiscretion,  and  has  there- 
fore sometimes  applied  to  acts  arising  from  thought- 
lessness, epithets  which  should  be  applied  only  to 
wilful  and  deliberate  dishonesty. 

But  however  severely  he  may  have  been  tried  at 
times,  the  general  cheerfulness  of  Judge  Smith's 
temper  was  unbroken,  and  his  sources  of  enjoyment 
rich  and  various.  In  the  summer  of  1825,  he  went 
with  his  daughter  to  Niagara,  Montreal,  and  Quebec. 
She  had  never  journeyed  before,  and  her  father  had 
never,  I  believe,  been  west  of  Albany.  Everything 
was  new  to  them,  and  they  went  on  exploring  and 
enjoying,  with  an  almost  childish  zest  and  freshness 
of  interest.  The  light  of  their  own  joyous  spirits 
was  thrown  over  whatever  they  met,  and  the  smallest 
incidents  not  only  amused  them  at  the  time,  but  were 
hoarded  up  to  enliven  their  more  solitary  hours.  For 
instance,  "  I  ought,"  says  Judge  Smith,  in  his  jour- 
nal,1 "  to  have  mentioned  a  civility  we  experienced 
at  Auburn,  which  gratified  us  at  the  time,  and  ever 
since  in  the  recollection.  I  directed  the  coachman 
to  stop  on  a  rising  ground,  just  above  the  village, 
that  we  might  have  a  full  view  of  it  and  the  prison. 
It  was  just  opposite  the  seat  of  a- gentleman.  A.'s 

1  This,  and  other  facts  relating  to  the  journey,  are  extracted  from  a 
journal  written  out  by  Judge  Smith,  mostly  after  his  return  home,  from 
letters  and  his  own  recollections. 


LIFE    OF    JUDGE    SMITH.  323 

eyes  were  soon  attracted  to  his  beautiful  garden,  and 
she  exclaimed,  '  see  the  beautiful  cherries.'  The 
gentleman,  who  was  walking  in  his  garden  unseen 
by  us,  called  our  coachman  to  him.  He  soon  re- 
turned with  three  or  four  branches  loaded  with  the 
finest  cherries.  We  bowed  our  acknowledgments 
and  went  on  our  way,  eating  and  rejoicing.  How 
many  similar  acts  of  attention  we  and  our  good  coun- 
trymen omit,  from  a  foolish  mauvaise  honte.  We 
determined  thenceforth  to  stop  every  passenger,  and 
give  him  cherries  in  the  season  of  them." 

Judge  Smith  had  a  great  taste  for  geography,  and 
especially  for  tracing  out  the  exact  localities  which 
had  been  distinguished  for  any  remarkable  actions  or 
events.  Perhaps  no  spot  awakened  so  many  or  such 
various  emotions  as  the  battle-ground,  which  he  had 
not  visited  since  he  was  there  as  a  boy,  bearing  arms 
in  the  service  of  his  country.  He  says :  "  We 
stopped  to  dine  at  Saratoga,  the  very  spot  where 
Burgoyne  surrendered  to  Gates.  This  circumstance 
added  something  to  the  enjoyment  of  a  good  dinner. 
In  the  afternoon  we  passed,  at  the  foot  of  Bemis's 
heights,  the  battle-grounds  of  the  19th  of  Septem- 
ber and  7th  of  October.  At  Stillwater,  lower  down, 
I  began  to  recognize  the  ground  I  had  been  over 
when  a  boy,  forty-eight  years  ago,  and  I  cannot 
describe  the  sensations.  Whatever  of  good  or  evil 
fortune  I  had  experienced  in  the  intervening  years, 
was  present  to  my  imagination.  I  will  not  say  that 
the  retrospection  was  all  delightful ;  but  I  can  truly 
say  the  pleasant  greatly  predominated." 

Twelve  or  fifteen  years  before,  Judge  Smith  had 


324  LIFE    OP    JUDGE    SMITH. 

been  delighted  with  Bishop  Cheverus,  when  he  heard 
him  preach  to  his  little  flock  in  a  small  church  in 
Maine,  and  on  meeting  him  afterwa'rds,  was  pleased 
with  him  even  more  in  his  private  than  in  his  public 
ministration.  But  he  was  not  so  favorably  impressed 
with  the  Roman  Catholic  ceremonies  at  Montreal. 
"  We  were,"  he  says,  "  particularly  in  luck,  in  being 
in  at  the  death  of  one  of  the  oldest  of  the  clergy,  as 
it  gave  us  an  opportunity  of  witnessing  the  cere- 
mony, (I  should  say  ceremonies,  for  they  were  many.) 
of  a  Catholic  funeral.  It  was  in  the  cathedral,  and 
took  up  two  or  three  hours.  Our  Protestant  eyes 
and  ears  were  satisfied  long  before  the  close,  but  the 
crowd  did  not  allow  us  to  retire,  till  his  late  rever- 
ence was  laid  quietly  in  his  grave,  in  a  corner  of  the 
church.  The  nuns  attended,  and  the  place  round 
the  altar  was  filled  with  priests.  The  prayers  and 
service,  being  in  Latin,  seemed  prodigiously  to 
heighten  the  devotion  of  the  Canadians  near  us.  The 
heat  of  the  room  was  considerably  augmented,  by  a 
great  number  of  wax  candles  set  to  burning  in  honor 
of  the  day.  A  few  devout  ladies  near  us  were  so 
fortunate  as  to  obtain  each  one,  at  least  a  yard  in 
height.  We  had  no  claims  to  any  such  distinction, 
and  were  obliged  to  atone  for  the  privation,  by  stir- 
ring our  fans  briskly.  .  .  .  The  Catholics,  no  doubt, 
are  equally  sincere  with  us  Protestants.  In  the  arts 
of  devotion  they  seem  to  excel  us.  '  God  was  praised 
by  the  best  organ  and  choristers.'  Lace,  brocade, 
and  embroidery  constituted  the  robes  of  the  priests. 
The  choicest  incense  from  Arabia  caused  a  sweet- 
smelling  savor,  and  there  were  abundance  of  candles 


LIFE    OF     JUDGE     SMITH.  325 

to  enlighten.  I  fear  we  must  allow  that  our  devotion 
is  less  fervent  than  theirs.  Is  reason  an  enemy  to 
devotion,  or  merely  to  the  semblance  of  it  ?  We 
of  the  sect  of  rational  Christians,  are  charged  by  our 
orthodox  brethren  with  wanting  piety.  I  hope  the 
difference,  if  there  be  any,  is  only  in  appearance. 
Why  should  reason,  in  its  largest  measure,  be  un- 
favorable to  true  piety  ?  It  does  not  become  us  to 
say  which,  the  rational,  or  the  ignorant  enthusiast, 
renders  the  most  acceptable  homage  to  the  God  of 
reason,  but  sure  I  am  no  man  could  sit  three  hours, 
as  I  have  done,  in  the  Catholic  church  of  Montreal, 
where  everything  was  addressed  to  the  bodily  eyes 
and  ears,  and  go  away  without  the  most  sincere  con- 
tempt for  the  solemn  mummery.  I  am  certainly  no 
enemy  to  a  liberal  support  to  the  teachers  of  religion 
who  are  calculated  to  do  so  much  good  in  society, 
but  here  the  clergy  abound  in  wealth  ;  it  is  the  flock 
who  are  poor." 

The  Catholic  was  not  the  only  kind  of  religious 
service  that  failed  to  edify  the  travellers.  "  At  Sara- 
toga we  attended  divine  worship,  and  heard  *  *  *  * 
preach  himself  above  an  hour,  much  to  his  own  satis- 
faction." 

But  the  interesting  people  they  met  during  their 
journey,  were  what  contributed  most  to  their  enjoy- 
ment, and  in  this  respect  they  were  particularly  for- 
tunate. "  On  leaving  Boston,"  Judge  Smith  says, 
"  we  had  a  very  pleasant  ride,  though  it  rained  occa- 
sionally. The  pleasure  arose  from  meeting  in  the 
****  an(j  *****  the  former  espe- 
28 


326  LIFE    OF    JUDGE    SMITH. 

cially,  a  charming  young  married  man,1  has  travelled, 
is  literary,  communicative,  and  well-bred."  At 
Northampton,  he  "  was  (not  unexpectedly)  delight- 
ed with  Judge  Howe."  On  going  from  Northampton, 
they  "  had  an  accession  to  their  company,  of  a  young 
gentleman  by  the  name  of  Snelling.2  He  proved  a 
useful  travelling  companion,  possessed  a  good  share 
of  information,  and  certainly  had  no  disposition  to 
hoard.  1  believe  he  was  particularly  pleased  with 
us,  which  did  not  serve  to  lessen  him  in  our  esti- 
mation." 

"  We  reached  Caldwell,  at  the  south  end  of  the 
lake  (George),  before  sunset,  and  found  an  excellent 
house,  Mr.  Baird's.  A.  with  several  of  the  company 
took  advantage  of  a  fine  evening,  to  visit  the  ruins 
of  Fort  William  Henry,  &c.  I  remained  with  the 
landlord,  who  was  as  much  to  my  taste  as  Squire 
Weston's  landlord  at  the  Hercules  Pillars,  who  had 
all  the  news  of  the  town,  and  could  tell  how  affairs 
went,  knowing  a  great  deal,  since  the  horses  of 
many  of  the  quality  stood  at  his  house.  He  asked 
me,  '  if  I  knew  Mr.  Emmett,  the  great  lawyer  of  New 
York  ? '  I  answered  I  had  never  seen  him,  but 
intended  to  obtain  an  introduction  when  I  reached 
the  city.  He  replied,  '  you  have  seen  and  supped 
with  hirrj  this  evening.  Mr.  E.  is  on  his  way,  with 


1  The  accomplished  author  of  "  the  Conquest  of  Mexico."  Miss 
Smith,  in  a  letter  to  her  mother,  says,  "  Father  and  Mr.  P.  kept  up  a 
constant  interchange  of  wit  and  humor.  It  was  the  most  entertaining 
ride  we  ever  took." 

»  Author  of  "  Tales  of  the  North- West,"  a  young  man  whose  brilliant 
promise  contrasted  painfully  with  his  after-life. 


LIFE    OF   JUDGE    SMITH.  3xi7 

his  wife,  to  visit  a  daughter  near  Ogdensburg.'  I 
told  him  (  he  must  be  mistaken  ;  that  I  was  sure,,  if 
there  had  been  any  great  lawyer  and  orator  at  the 
table,  and  especially  if  an  Irishman,  I  should  have 
taken  some  note  of  him.'  In  a  few  minutes  an 
elderly  gentleman,  in  a  pretty  ordinary  travelling 
dress  and  with  nothing  striking  in  his  appearance, 
and  whom  I  recollected  having  seen  at  the  table, 
took  his  chair  in  the  piazza,  to  enjoy  the  delightful 
evening  near  us.  Mr.  B.  gave  me  a  look  as  much  as 
to  say,  '  this  is  the  man.'  I  immediately  began  a 
conversation  with  him,  and  was  soon  satisfied  that 
dress  '  does  not  make  the  man,  and  want  of  it  the 
fellow.'  I  took  care  to  lead  him  to  topics  I  knew 
would  excite  him.  His  countenance  lighted  up,  and 
he  was  quite  lively  and  eloquent.  In  about  half  an 
hour  he  retired  to  give  some  orders.  On  his  return, 
I  told  him  I  wished  to  introduce  a  person  to  his  ac- 
quaintance, of  whom  he  had  never  heard,  and  never 
would  again.  On  announcing  my  name,  he  imme- 
diately and  cordially  took  me  by  the  hand,  pretended 
he  had  heard  of  me,  and  wished  to  know  me.  He 
spoke  of  General  Haines,  and  young  Mr.  Walker, 
one  or  both  had  studied  with  him.  I  made  the 
proper  acknowledgments,  and  we  fell  into  the  pleas- 
antest  conversation  imaginable  about  men  and  things, 
the  Irish  and  New  York  bars,  South  Carolina,  United 
States,  &c.  I  was  sorry  that  our  arrangements  de- 
prived me  of  his  company.  The  next  day  he  was  to 
remain  at  Baird's,  and  we  to  start  for  Albany.  Judge 
Spencer  related  to  me  the  anecdote  of  Mr.  Pinck- 
ney's  attack  on  him,  in  the  supreme  court  of  the 


328  LIFE    OF   JUDGE    SMITH. 

United  States.  They  were  on  opposite  sides  in  an 
important  cause,  and  one  which  Pinckney  had  much 
at  heart,  and  was  desirous  of  winning  by  fair  or 
unfair  means.  In  the  course  of  his  argument,  he 
travelled  out  of  the  cause  to  make  observations,  per- 
sonal and  extremely  offensive  on  Mr.  E.  with  a 
view,  probably,  of  irritating  and  weakening  his  reply. 
Mr.  E.  sat  quiet  and  endured  it  all.  It  seemed 
to  have  sharpened  his  intellect,  without  having  irri- 
tated his  temper.  When  the  argument  was  through, 
he  said,  '  perhaps  he  ought  to  notice  the  remarks  of 
the  opposite  counsel,  but  this  was  a  species  of  war- 
fare in  which  he  had  the  good  fortune  to  have  little 
experience,  and  one  in  which  he  never  dealt.  He 
was  willing  his  learned  opponent  should  have  all  the 
advantage  he  promised  himself  from  the  display  of 
his  talents  in  this  way.  When  he  came  to  this 
country  he  was  a  stranger,  and  was  happy  to  say  that 
from  the  bar  generally  and  the  court  universally,  he 
experienced  nothing  but  politeness,  and  even  kind- 
ness. He  believed  the  court  would  do  him  the 
justice  to  say,  he  had  said  or  done  nothing  in  this 
cause,  to  merit  a  different  treatment.  He  had  al- 
ways been  accustomed  to  admire,  and  even  reverence 
the  learning  and  eloquence  of  Mr.  Pinckney,  and  he 
was  the  last  man  from  whom  he  should  have  expected 
personal  observations  of  the  sort  the  court  had  just 
witnessed.  He  had  been  in  early  life  taught  by  the 
highest  authority,  not  to  return  railing  for  railing. 
He  would  only  say,  that  he  had  been  informed  that 
the  learned  gentleman  had  filled  the  highest  office 
his  country  could  bestow  at  the  court  of  St.  James. 


LIFE    OF    JUDGE    SMITH.  329 

He  was  very  sure  he  had  not  learned  his  breeding  in 
that  school.'  '  The  court,  bar,  and  audience  were 
delighted.  Mr.  Pinckney  was  apt  to  be  occasionally 
a  little  overbearing." 

On  their  way  home  in  the  steam-boat  from  New 
York  to  New  Haven,  Judge  Smith  was  so  fortunate 
as  to  find  Mr.  Hoffman,  of  Baltimore.  "  Here  again 
the  introduction  was  out  of  the  common  way.  A., 
in  passing  the  baggage-room,  saw  the  name  on  a 
trunk,  and  informed  me  of  the  circumstance.  We 
immediately  set  about  examining  the  persons,  coun- 
tenances, &c.  of  the  passengers,  and  happened  to  fix 
on  the  right  man.  When  shortly  after,  he  took  a 
seat  near  me  on  the  deck,  I  observed  that,  having 
reason  to  believe  Mr.  Hoffman  of  Baltimore  was  on 
board,  I  had  fixed  on  him  as  the  man.  He  bowed 
assent,  and  said  it  would  gratify  him  to  know  who 
it  was  that  did  him  the  honor  to  notice  his  person. 
This  seemed  too  reasonable  to  be  denied.  We  soon 
became  acquainted,  and  spent  the  greater  part  of  the 
time  in  conversation  together.  He  is  remarkably 


1  Mr.  Pinckney  afterwards  made  the  most  ample  and  generous  ac- 
knowledgment. "  The  manner,"  he  said,  "in  which  he  (Mr.  Em- 
mett)  replied,  reproaches  me  by  its  forbearance  and  urbanity,  and  could 
not  fail  to  hasten  the  repentance,  which  reflection  alone  would  have  pro- 
duced, and  which  I  am  glad  to  have  so  public  an  occasion  of  avowing. 
I  ofier  him  a  gratuitous  and  cheerful  atonement— cheerful,  because  it 
puts  me  to  rights  with  myself,  and  because  it  is  tendered  not  to  igno- 
rance and  presumption,  but  to  the  highest  worth  in  intellect  and  morals, 
enhanced  by  such  eloquence  as  few  may  hope  to  equal  —  to  an  inter- 
esting stranger,  whom  adversity  has  tried,  and  affliction  struck  severely 
to  the  heart  —  to  an  exile,  whom  any  country  might  be  proud  to  receive, 
and  every  man  of  a  generous  temper  would  be  ashamed  to  ofFend."  — 
Wheaton's  Life  of  Pinckney,  p.  500. 


330  LIFE     OF     JUDGE      SMITH. 

well-informed,  and  even  learned  for  a  young  man. 
He  made  me  better  acquainted  with  Pinckney  than  I 
was' before.  He  knew  Harper  well.  We  had  enough 
to  talk  about  in  the  Maryland  bar,  the  supreme  court 
of  the  United  States,  and  the  most  modern  books  of 
law.  He  had  read  Dane's  Digest,  and  gives  a  very 
bad  account  of  it.  He  thinks  it  faulty  in  arrange- 
ment, in  matter,  language  and  manner."  ' 

But  nothing  that  occurred  during  the  journey  gave 
Judge  Smith  so  much  pleasure  at  the  time,  or  so 
much  satisfaction  afterwards,  as  the  acquaintance  he 
formed  with  Chancellor  Kent,  for  whom,  as  a  lawyer 
and  a  man,  he  had  entertained  the  most  profound 
respect.  Their  meeting  was  on  this  wise,  as  de- 
scribed in  Judge  Smith's  journal.  "  We  reached 
Schenectady  about  seven,  there  to  take  the  canal- 
boat.  When  we  took  our  seats  at  the  supper-table, 
we  found  on  the  opposite  side,  a  gentleman  and  two 
very  young  ladies.  His  person  indicated  more  years, 
but  his  manners  put  him  on  a  par  with  the  ladies. 
A  gentleman  on  the  same  side  with  us,  accosted  him 
as  Mr.  Kent ;  surely  it  was  not  the  great  Chancellor 
Kent ;  he  was  not  old,  but  too  old  for  that  gentle- 
man's son.  It  might  be  a  brother,  at  any  rate,  he 
was  a  frisky  chap,  much  sail  and  little  ballast.  The 
gentleman  and  his  ladies  left  the  table,  as  we  did, 
soon  after,  and  A.  whispered  me  'that  was  Chancel- 
lor Kent,  you  may  be  sure.'  I  stoutly  denied  it,  and 
should  never  have  been  convinced,  had  not  the  same 
figure,  with  his  two  ladies,  popped  again  upon  us  in 

1  In  this  opinion  Judge  Smith  entirely  concurred. 


LIFE     OF     JUDGE     SMITH.  331 

the  entry,  and  A.  introduced  me  as  Judge  Smith. 
He  seemed  almost  as  incredulous  on  the  score  of  my 
personal  identity  as  I  was  of  his,  (not  I  presume  from 
the  same  cause.)  We  both  yielded  at  last,  and  he 
introduced  his  daughter  and  his  niece.  With  one 
consent  we  all  began  to  lament  that  our  engagements 
must  instantly  separate  us,  though  both  bound  to  the 
same  place,  Utica. 

"  We  reached  Utica  about  sunset,  had  our  baggage 
sent  to  Shepherd's  inn,  a  very  good  one,  and  had  no 
sooner  sat  down  than  we  were  called  on  by  Chancel- 
lor Kent  and  Judge  Platt.  We  had  proposed  spend- 
ing the  next  day  at  Utica,  and  Judge  Platt  urged  us 
to  spend  it  at  his  house  with  the  chancellor  and  his 
family.  This  was  too  much  in  unison  with  our  wishes 

to  be  declined We  dined  at  four  o'clock, 

and  spent  our  time  very  agreeably.  The  Kents  and 
we  at  nine  went  on  board  the  canal-boat,  and  the 
next  night  at  midnight,  parted  at  Weed's  Bason,  they 
proceeding  direct  for  Buffalo,  and  we  for  Oswego. 
Nothing  but  the  absolute  necessity  of  visiting  our  re- 
lations on  the  Susquehanna  could  have  separated  us ; 
we  were  all  acquainted  at  once,  and  JL  am  sure  strongly 
attached  on  all  sides.  The  ladies  preferred  quitting 
the  boat  with  us,  and  taking  a  carriage  for  Auburn. 
Here  we  saw  the  chancellor  in  his  true  character  of 
simplicity  and  the  most  kindly  affections ;  his  judg- 
ment led  him  one  way,  and  their  inclination  another. 
His  desire  to  oblige  them  held  him  long  in  suspense. 
It  was  clear  we  must  part  soon,  and  I  could  not  but 
join  him  in  the  argument.  The  ladies  at  last  ac- 
quiesced, and  we  parted  to  meet  no  more  till  our 
arrival  at  New  York." 


332  LIFE     OF     JUDGE     SMITH. 

[At  New  York,  several  weeks  afterwards :]  "  I 
called  on  the  chancellor,  and  spent  the  forenoon  with 
him  in  his  library.  He  did  the  talking  of  course,  and 
I  played  the  game  of  listening.  Some  of  my  friends, 
to  whom  I  have  mentioned  it,  have  not  hesitated  to 
say  that  I  played  badly  for  want  of  practice.1  The 
ladies  insisted  that  Ariana  should  make  her  home 
with  them,  which  was  quite  agreeable  to  her.  I  gave 
them  much  the  greater  part  of  my  company,  and 
never  spent  two  days  more  pleasantly  or  profitably." 

"  July  28,  we  took  the  stage  for  Exeter,  and  were 
so  happy  as  to  find  our  friends  very  well,  and  not 
expecting  us.  It  was  one  day  sooner  than  the  time 
we  had  prescribed  for  ourselves  at  setting  out,  eight 
weeks.  We  were  happy  to  find  ourselves  once  more 
at  home,  and  did  not  a  little  applaud  our  resolution 
in  having  ventured  on  so  long  a  journey,  now  suc- 
cessfully brought  to  a  close,  a  thing  that  will  give  us 
pleasure  as  long  as  we  live.  We  had  travelled 
twenty-three  or  twenty-four  hundred  miles,  and  had 
seen  all  the  most  interesting  places  on  our  route,  em- 
bracing the  northern  section  of  the  United  States  and 
the  adjoining  country.  We  set  out  with  the  determi- 
nation of  being  pleased,  and  were  of  course  not  dis- 
appointed. It  is  no  doubt  true  that  those  who  set 
out  on  their  travels  with  the  determination  to  find 
fault,  may  safely  count  on  success.  We  were  uni- 


1  Judge  Smith,  many  years  before,  spending  the  night  in  company 
with  Chief  Justice  Parsons  and  other  lawyers,  at  a  public  house,  was 
late  in  making  his  appearance  in  the  morning,  and  inquiry  being  made 
what  could  have  become  of  him,  "  Oh,"  said  Judge  Parsons,  "  he  is  in 
bed  resting  that tongue  of  his." 


LIFE     OF     JUDGE     SMITH.  333 

formly  treated  with  politeness,  and  in  many  cases 
experienced  the  most  delicate  and  friendly  attentions. 
We  made  no  claims,  set  up  no  pretensions,  and  I  be- 
lieve uniformly  experienced  an  increase  of  attentions 
in  the  various  companies  into  which  we  were  thrown, 
as  the  time  of  our  sojourning  together  drew  to  a  close ; 
so  that  modesty  as  well  as  honesty  is  the  best  policy 
in  a  traveller,  and  I  would  heartily  recommend  it  to 
all  my  friends  on  their  travels.  I  incline  to  think  the 
general  practice  is  the  other  way,  and  that  modest, 
unpretending  people  at  home  frequently  set  up  claims 
and  make  extravagant  demands  abroad,  as  tending 
to  beget  an  idea  of  their  great  consequence. 

"  We  were  by  no  means  sparing  of  ourselves  when 
anything  was  to  be  done  or  seen.  At  the  same  time 
we  were  never  in  a  hurry,  made  no  point  of  being  at 
a  particular  place  at  any  particular  time,  or  of  travel- 
ling in  one  mode  rather  than  another.  We  used 
steam-boats,  canal-boats,  stages,  and  hired  private 
carriages,  as  was  most  expedient  at  the  time.  When 
the  labors  of  one  day  fatigued  us,  we  took  care  to 
rest  the  next.  I  experienced  no  inconvenience  from 
the  indulgence  of  my  natural  disposition  to  enter 
freely  into  conversation  with  all  persons  and  on  all 
subjects.  Amusement,  and,  what  is  more  impor- 
tant, information  and  increase  of  knowledge,  is  to 
be  derived  from  the  conversation  of  every  individual 
whatever,  with  whom  one  may  be  thrown  into  a  natu- 
ral train  of  communication.  For  ourselves,  we  can 
say,  that  we  never  found  ourselves  in  company  with 
the  stupidest  of  all  possible  companions  in  a  stage- 
coach, without  finding  that,  in  the  course  of  our  con- 
versation with  him,  we  had  some  ideas  suggested  to 


334  LIFE    OP    JUDGE    SMITH. 

us,  either  grave  or  gay,  or  some  information  commu- 
nicated in  the  course  of  our  journey,  which  we  should 
have  regretted  not  to  have  learned,  and  which  we 
should  be  sorry  to  have  immediately  forgotten. 

"  It  was  not  uncommon  to  find  in  these  casual  con- 
versations, that  there  was  some  person,  sometimes 
many,  with  whom  we  were  both  acquainted.  This 
created  something  of  a  tie,  and  prevented  us  from 
feeling  towards  each  other  as  perfect  strangers.  It 
was  our  uniform  practice  to  sit  down  at  every  meal  at 
the  ordinary.  We  saw  all  the  company.  In  this 
way  we  made  many  agreeable  acquaintances,  useful 
to  us  on  our  journey.  And  I  would  recommend  to 
travellers  to  go  in  very  small  parties,  and  to  associate 
as  little  as  possible  with  each  other.  These  large 
parties  are  the  dullest  things  imaginable.  I  can  even 

imagine  and  ,  with  their 

sprightly  wives  and ,  at  the  end  of  three 

days'  travelling  together  in  the  same  carriage,  and 
keeping  by  themselves  at  the  public  houses,  —  dull 
enough,  in  all  conscience,  to  satisfy  the  bitterest 
enemy  of  gaiety  and  bagatelle. 

"  I  cannot  conclude  this  conclusion  to  our  excur- 
sion, without  dissuading  invalids  from  undertaking  so 
long  a  journey.  They  are  in  much  greater  danger  of 
losing  the  little  health  they  may  happen  to  have,  than 
of  acquiring  any  fresh  stock.  Variety  of  company, 
novel  and  striking  scenery,  the  picturesque,  the  sub- 
lime, or  the  beautiful,  will  add  nothing  to  the  enjoy- 
ment or  pleasure  of  the  real  invalid.  This  kind  of 
misery,  that  of  ill  health,  languor  and  pain,  does  not 
love  company,  and  company  does  not  love  it." 

The  two  years  after  this  journey  were  marked  in 


LIFE    OF    JUDGE    SMITH.  335 

Judge  Smith's  family  by  no  important  events,  but 
were  years  of  quiet,  domestic  enjoyment.  Mrs. 
Smith's  health,  which  had  been  slowly  declining  for 
a  long  time,  was  now  such  that  she  seldom  left  the 
house,  except  during  the  mildest  of  the  summer 
weather,  to  observe  in  their  progress  the  little  im- 
provements in  gardening,  which  had  furnished  so 
many  hours  of  refined  and  pleasant  occupation.  She 
was  in  that  delicate  condition,  which  leaves  one's 
friends  never  entirely  free  from  solicitude,  and  which 
often  does  so  much  to  soften  the  family  intercourse, 
and  to  cherish  a  tender,  watchful,  confiding  affection. 
No  daughter  could  be  more  devoted  than  Ariana 
during  this  time  to  her  mother.  She  was  almost  al- 
ways at  home,  to  free  her  from  every  care,  and  to  do 
whatever  could  be  done  to  alleviate  her  sufferings, 
which  were  mostly  those  that  spring  from  weakness, 
and,  above  all,  to  soothe  and  cheer  her  mind.  These 
attentions  were  not  undervalued,  but  the  affections  of 
the  wife  and  mother  increased  as  she  drew  near  her 
end.  In  the  last  letter  she  wrote,  which  was  to  her 
husband  and  daughter  while  they  were  on  their  tour 
to  Niagara,  she  says,  "  I  wish  you  could  see  your 
garden  this  evening  —  it  is  delightful ;  but  I  cannot 
help  feeling  that  the  divinities  of  the  place  are  away, 
far,  too  far  for  comfort.  Oh  !  my  dear  husband,  do 
not  let  me  see  in  your  letters  that  you  do  not  enjoy 
yourselves,  for  never  did  any  one  make  such  sacrifice 
as  I  have  done.  It  seems  to  me  I  should  like  even  to 
hear  you  talk  to  the  cats  in  your  loudest  tones."  And 
there  was  something  very  beautiful  and  touching  in 
William's  attentions  to  her,  who,  in  all  his  difficulties 


336  LIFE    OF    JUDGE    SMITH. 

and  errors,  had  never,  for  a  moment,  permitted  the 
tenderness  of  the  mother  to  be  lost  in  the  severity  of 
the  judge  or  teacher.  She  continued  slowly  failing 
till  the  morning  of  the  19th  of  June,  1827,  when  she 
quietly  fell  asleep.  The  progress  of  disease  had  been 
so  constant,  her  withdrawal  from  life  so  gradual,  and 
so  long  looked  for,  and  death  was  so  plainly  a  wel- 
come guest,  that  it  came  gently  as  a  summer's  cloud, 
and  her  friends  could  hardly  mourn  their  loss  with- 
out impiety  to  her. 

The  autumn  after  her  death,  William,  who,  till 
then,  had  lived  under  his  father's  roof,  removed  to 
Portsmouth,  and  opened  an  office  there.  The  next 
spring  he  was  attacked  by  a  violent  lung  fever, 
which,  after  continuing  some  weeks,  left  him  with  a 
heavy  cough,  exhausting  night  sweats,  and  some  of 
the  surest  indications  of  consumption.  As  soon  as 
he  was  able  to  bear  the  journey  he  was  taken  home, 
where  his  sister,  who  had  been  with  him  during  the 
fever,  continued  still  to  perform  the  duties  of  a  most 
faithful,  tender,  and  devoted  nurse. 

Just  at  this  time  the  Exeter  bank,  of  which  Judge 
Smith  had  been  the  president  from  its  commence- 
ment, was  broken  open,  and  nearly  thirty  thousand 
dollars  stolen  from  it.  Here  was  a  new  field  of 
action,  and,  in  the  capacity  of  thief-catcher,  he  was 
absent  from  home  several  weeks.  He  never,  per- 
haps, displayed  more  adroitness  than  in  this  expe- 
dition. The  robbers  were  cunning  and  experienced 
men,  shrewd  and  reckless,  with  no  fear  of  the  state- 
prison,  but  perfectly  willing  to  spend  a  few  years 
there,  if,  at  the  expiration  of  the  term,  they  could  be 


LIFE     OF     JUDGE     SMITH.  337 

left  in  possession  of  their  buiied  treasures.  They 
had  all  been  convicts  before,  and  their  leader,  Mai- 
bone  Briggs,  though,  in  the  eye  of  the  law,  only  an 
accessary  in  the  case,  had  been  three  times  in  the 
state-prison,  and  of  his  seven  sons,  six  were  said  to 
have  been  graduated  at  the  same  school.  Judge 
Smith  had  no  great  difficulty  in  getting  such  evi- 
dence, as  to  satisfy  himself  that  they  would  be  con- 
victed, but  how  to  get  back  the  money  was  the  hard 
question.  For  this  purpose  he  went  several  times  to 
New  York,  visited  Briggs's  house  during  his  absence, 
where  he  had  several  confidential  interviews  with 
Mrs.  B.,  who  seemed  not  unwilling  to  be  freed  for  a 
short  time  from  the  severe  dominion  of  her  master. 
He  had  frequent  conversations  with  the  prisoners, 
and  at  last,  making  no  other  promise  than  that  their 
confessions  should  not  be  used  in  evidence  against 
them,  he  succeeded  in  getting  their  secret,  and  se- 
curing to  the  bank  nearly  all  that  had  been  lost. 

A  few  extracts  from  letters  written  to  his  daughter, 
during  this  expedition,  are  introduced  here,  princi- 
pally for  the  purpose  of  showing  how  fondly  his 
mind  turned  always  towards  her.  Indeed,  he  said 
that  he  found  himself  constantly  using  expressions, 
which  he  had  used  thirty  years  before  in  correspond- 
ing with  her  mother.  "  My  dear  Ariana :  your  letter 
of  Sunday  evening  was  very,  very  good  and  kind, 
and  cheered  me  mightily.  I  am  glad  such  senti- 
ments are  in  you,  and  that  they  came  out.  God 
bless  you I  am  glad  this  will  reach  you  Sat- 
urday. It  will  come  fresh  from  your  best  friend, 
and  you  will  readily  imagine,  better  than  he  can  ex- 
29 


338  'LIFE    OF    JUDGE    SMITH. 

press,  the  love  he  bears  you,  and  always  has  and 
ever  will."  July  5.  In  New  York.  "  I  shall  see 
your  friends,  the  Smiths  and  Rents,  I  hope  ;  but  a 
man  pursuing  thieves  feels  so  like  a  catchpole,  that 
he  has  little  pleasure  in  seeing  friends  or  joining  in 
amusements.  But  I  shall  tatf  a  luke  o'  them.  I 
hope  you  have  Mr.  Brown  with  you,  and  that  your 
time  will  pass  not  unpleasantly.  Young  people 
should  do  all  the  travelling.  I  have  less  and  less 
enjoyment  in  it  every  day,  and  experience  a  loneli- 
ness I  never  felt  before.  The  world  and  I  form  two 
great  divisions,  more  unequal  in  number  than  your 
friend's  two  classes  —  saints  and  sinners." 

July  28.  "  How  good  and  happy  a  thing  it  is  that 
I  have  no  anxiety  about  affairs  at  home.  When 
anything  very  pleasant  occurs  here  I  wish  for  you, 
but  the  general  balance  is  the  other  way  ;  the  suffer- 
ing exceeds  the  pleasure,  and  therefore  I  am  glad 
you  are  safe,  and  I -hope  happy,  superintending  the 
affairs' of  your  small  family.  I  am  in  a  crowd  all 
.the  time,  'and  long  for  your  shady,  cool  walks,  books 
and  airy  rooms.  .  .  .  Nothing  can  be  more  gloomy 
and  solitary  than  my  life  here.  .  .  .  Businesses  cer- 
tainly unsocial,"  and  New  York  a  desert  to  a  New 
Hampshire  man,  trying  to  lay  his  hands  on  Exeter 
bank  bills.  Surely  our  Exeter  people  are  the  stupid- 
est of  the  stupid.  .  .  .  But  all  this  only  proves  my 
temper  is  a  little  ruffled  ;  but  I  shall  soon  recover, 
and  be  in  charity  with  all  men.  It  rains  every  day 
here.  .  .  ,  Adieu,  my  dearest  Ariana.  Be  happy  ; 
you  must  be  so,  for  you  are  good,  and  not  in  pursuit 
of  thieves  and  Exeter  bank  bills.  So  prays  J.  S." 


LIFE     OF     JUDGE     SMITH.  339 

Through  the  autumn  of  1828,  William  was  very 
feeble,  -  never  leaving  the  house,  and  spending  the 
greater  part  of  his  time  in  his  chamber.  -Ariana's 
attention  was  divided  between  her  father  and  brother, 
the.  day  being  usually  passed  in  the  sick  room,  and 
the  evening  in  her  father's  study.  A  newly  married 
couple  could  hardly  be  more  assiduous  in  their  atten- 
tions to  each  other,  or  take  more  delight  in  each 
other's  society.  Works  of  fiction,  history  and  phi- 
losophy, contributed  each  a  share  to  their  instruction 
and  enjoyment.  Reading  afforded  matter  for  con- 
versation, and  conversation  gave  new  life  and  zest  to 
reading.  Sometimes,  though  rarely,  a  game  of  piquet 
was  allowed  to  take  the  place  of  books,  and  mimic 
kings,  queens  and  knaves  usurped  the  stations  and 
played  the  parts  of  their  more  important  prototypes, 
who  fill  the  pages  of  history  and  romance.  The 
memory  of  the  friend  who  had  so  recently  gone  from 
among  them  was  gratefully  cherished,  and  threw  a 
softening  influence  over  their  lives.  No  subject  was 
so  frequently  or  so  warmly  dwelt  upon  in  their  even- 
ing intercourse  as  the  devotedness  of  her  former  days, 
and  the  patience  and  resignation  of  her  last  hours. 
It  seemed  almost  as  if  she  were  still  one  of  the  com- 
pany. 

In  this  manner  the  autumn  passed.  There  was 
little  hope  of  William's  recovery,  but  nothing  was 
omitted  by  his  father  or  sister  that  might  contribute 
either  to  his  present  comfort  or  future  amendment. 
Late  in  the  fall  Ariana  was  seized  with  a  violent  cold. 
No  serious  consequences  were  apprehended,  and  it 
was  allowed  to  pass  like  other  colds.  Her  usual  du- 


340  LIFE     OF     JUDGE     SMITH. 

ties  and  pleasures  were  not  interrupted,  and  her  mind 
lost  nothing  of  its  natural  quickness  and  vivacity. 
The  whole  winter  passed  away,  and  still  there  was 
no  improvement.  The  true  character  of  the  disease 
was  not  suspected.  But  her  father  was  not  alarmed. 
His  affections  were  so  concentrated  on  her,  whom  he 
had  already  looked  forward  to  as  the  last  that  should 
remain  to  him  of  his  five  children,  that  it  did  not  oc- 
cur to  him  that  she  also  might  be  taken.  He  quieted 
his  own  apprehensions,  but  not  the  disease,  which 
was  making  slow  but  fatal  inroads  on  her  constitution, 
closing  the  avenues  and  exhausting  the  fountains  of 
life.  Early  in  March,  as  the  spring  birds  first  began 
to  appear,  she  withdrew  to  her  chamber,  and  soon  a 
few  moments  in  the  day  were  all  that  she  had  strength 
to  spend,  except  upon  her  bed.  The  feelings  with 
which  she  was  borne  along  through  her  sickness,  are 
happily  expressed  in  words  which  I  find  copied  by 
her  own  hand.  "  It  has  often  been  said  that  a  slow, 
wasting  disease  of  the  body,  must  press  heavily  upon 
the  soul,  which  sees  its  departure  from  the  friendly 
world  approach  step  by  step,  and  counts  as  it  were 
the  leaves  of  bloom  which  drop  one  after  another. 
When,  however,  no  distorting  pains  interfere,  and 
when  the  departing  one  does  not  love  too  much  that 
which  is  called  life,  nor  hate  too  much  that  which 
is  called  death,  it  may  not  be  so  bad  as  is  imagined. 
If  we  drink  the  last  flask  of  a  noble  wine  with  a  pleas- 
ure which  we  did  not  know  before,  why  not  also 
these  last  drops  of  the  earthly  being  ?  In  thus  glid- 
ing quietly  downwards,  we  meet  with  few  of  the  cares 
and  shocks  of  this  lower  world  ;  we  have  little  more 


LIFE    OF    JUDGE    SMITH.  341 

to  do  than  to  pluck  its  flowers  ;  a  foretaste  of  the 
disembodied  state  is  breathing  around  us  ;  those  who 
love  us  have  more  thought  and  more  affection  for  the 
departing  one ;  and  those  who  do  not  love  us  we 
more  lightly  and  easily  pardon,  regardful  of  the  text, 
'  Forgive  as  we  would  be  forgiven,'  as  well  as  mind- 
ful of  the  short  time  which  we  have  to  pilgrimage 
together ;  and  when  a  tear  flows  from  the  eye,  it 
flows  almost  as  visibly  as  seed  pearl  into  the  life  of 
paradise.  Whoever  has  experienced  •  such  gentle 
suffering  will  not  deny  us  his  assent.  .  .  .  ." 

When  the  warm  weather  came,  there  appeared  no 
improvement  or  relief,  but  rather  a  sinking  and  wast- 
ing away.  Like  some  young  and  beautiful  plant, 
that  droops  we  know  not  why,  her  strength,  without 
any  adequate  cause  that  her  physicians  could  dis- 
cover, gradually  left  her,  till  at  length  it  was  found 
that  the  same  disease  which  had  taken  the  mother, 
and  was  now  taking  the  brother  to  his  grave,  had 
seized  also  on  her.  No  suspicion  of  the  nature  of 
her  illness  was  entertained  by  her  friends  till  three  or 
four  weeks  before  her  death.  She  knew  that  she 
must  die,  but  expressed  no  wish  to  live  except  for 
her  father's  sake.  There  were  no  professions  or  part- 
ing words,  but  just  enough  to  let  him  know  that  she 
understood  her  situation,  and  was  prepared  to  go  in 
peace. 

"  It  is,"  said  her  father,  in  minutes  taken  at  the 
time,  "  exceedingly  painful  to  look  on  a  beloved  ob- 
ject, of  whose  life  you  entirely  despair.  The  occa- 
sional pleasant  looks,  and  smiles,  and  lively  conver- 
sation cause  a  most  melancholy  emotion.  In  this 
29* 


342  LIFE     OF     JUDGE     S>IITH. 

case  I  am  persuaded  that  the  dear  sufferer  has  no 
hopes  at  such  moments  more  than  the  beholder.  The 
emotion  is  a  mixed  one  ;  you  rejoice  and  grieve  — 
hope  for  an  instant  springs  up  —  your  judgment  is 
employed  in  repressing  it.  You  are  reminded  pow- 
erfully of  the  value  of  what  you  are  just  about  to  lose 
forever.  You  rejoice  at  the  apparent  ease,  comfort 
and  exemption  from  suffering,  but  feel  that  your  joy 
is  fated,  to  last  but  for  a  moment,  and  speedily  to  be 
succeeded  by  suffering  and  death." 

She  once  said  to  her  father,  "  How  many  times  have 
I  formed  schemes  of  the  future,  when  I  was  to  take 
care  of  you,  nurse  you,  amuse  you  !  How  many 
thousand  little  comforts  I  have  planned  for  you  ! " 
But  conversations  like  this  were  too  interesting  for 
her.  Judge  Smith  never  felt  at  ease  in  the  sick 
room,  even  of  his  daughter.  His  life  had  been  spent 
amid  other  scenes.  His  feelings  were  kind  ;  but  he 
had  not  the  soft  and  pliant  manners,  the  calm  self- 
possessjon  and  repose  which  are  so  important  to  the 
sick.  She  was  unwilling  also  that  he  should  witness 
her  sufferings.  William,  whose  health  had  been 
slowly  improving,  was  a  more  gentle  and  unexciting 
companion,  and  was  more  with  her.  She  sank  qui- 
etly away,  and  when  she  slept,  her  countenance 
seemed  like  that  of  a  delicate  young  girl  in  some 
pleasant  dream.  In  her  wanderings,  there  was,  as 
her  father  said,  no  expression  of  fear  or  dread,  no 
indication  of  anything  disagreeable,  but  all  was  peace- 
ful and  serene.  On  Monday,  the  15th  of  June,  she 
dictated  a  few  words  for  her  brother  to  write  down, 
that  they  might  go  with  some  small  tokens  of  her  love 


LIFE     OF     JUDGE     SMITH.  343 

to  her  dearest  friends.  On  Friday,  the  19th  of  June, 
the  anniversary  of  her  mother's  death,  just  at  sunset, 
she  asked  to  be  carried  to  the  window,  and  looking 
out  as  she  knew  for  the  last  time  on  the  earth  and 
sky,  she  was  touched  and  melted  by  their  exceeding 
beauty.  "  Such  softness  of  coloring,"  she  said,  "  such 
intermingling  of  shades,  such  a  variety  of  green  ! " 
But  her  eyes  were  soon  to  open  on  richer  glories  than 
God  has  made  to  shine  from  these  his  lower  works. 
The  next  day,  at  the  same  hour,  it  being  towards  the 
close  of  the  last  day  of  the  week,  she  was  called  away 
to  spend  an  eternal  Sabbath  in  a  world  where  pain 
and  sickness  shall  be  felt  no  more. 

It  had  been  one  of  those  lovely,  transparent  June 
days,  when  the  earth  seems  in  a  peculiar  manner  em- 
braced by  the  fostering  heavens.  The  air  was  filled 
with  fragrance,  and  the  sun  just  going  down,  as  the 
physician  informed  Judge  Smith  that  his  daughter 
was  dying.  He  arose,  calmly  begged  the  clergyman 
of  a  neighboring  town,  with  whom  he  was  convers- 
ing, to  excuse  him,  and  went  to  her  chamber.  No 
word  was  spoken,  and  the  beautiful  composure  with 
which  she  died,  her  spirit  passing  away  gently  as 
the  perfume  of  evening  flowers,  threw  around  her 
departure  a  charm,  which  took  from  death  all  its 
terrors. 

For  a  moment,  as  he  afterwards  said,  though  no 
one  perceived  it  at  the  time,  her  father  rebelled 
against  the  Providence  of  God  —  it  was  but  for  a 
moment.  He  talked  of  her  freely,  calmly  and  cheer- 
fully. A  stranger  would  not  have  known  from  his 
appearance,  that  anything  unusual  had  taken  place. 


344  LIFE    OF    JUDGE    SMITH. 

Indeed,  to  some  who  did  not  understand  his  charac- 
ter, this  self-possession  seemed  so  unnatural,  that 
they  feared  his  mind  was  giving  way,  while  by  others 
it  was  attributed  to  a  Stoic  insensibility.  But  he  had 
meat  to  eaV  which  they  knew  not  of.  He  asked  the 
clergyman  who  attended  her  funeral  to  "  give  thanks 
that  she  had  been  spared  so  long,"  and  as  he  fol- 
lowed her  body  .to  the  grave,  supporting  the  son  on 
whom  he  should  have  leaned',  he  was  enabled  to  look 
up,  and  view  as  but  a  point  the  days  or  years  which 
might  separate  him  from  her.  Indeed  it  was  hardly 
a  separation.  "I  have  known,"  he  said,  "what 
implicit  confidence  is  —  what  it  is  to  love  another 
better  than  myself  —  to  see  my  own  good  qualities, 
if  I  may  speak  of  such  things,  exist  in  another,  in  a 
more  amiable,  graceful,  attractive  form.  In  truth, 
dwelling  on  and  contemplating  her  perfect  character, 
constitutes  my  whole  pleasure.  She  must  be  happy 
hereafter,  who  has  been  so  good  here,  and  she  will 
live  with  me  as  long  as  I  live." 

During  her  sickness,  the  thought  of  her  suffering 
tried  him  severely.  "  It  is  painful,"  he  said,  "  ex- 
ceedingly so,  to  watch  the  progress  of  phthisis  in  a 
beloved  object  to  the  final  close.  How  gradual  ! 
every  step  marked  with  additional  weakness  and 
pain.  .  If  the  patient  has  hope  of  a  favorable  termi- 
nation, the  rational  beholders  can  have  none.  We 
(the  beholders)  can  endure  the  pain,  (so  to  speak,) 
when  we  foresee,  or  think  we  foresee,  a  favorable 
issue  ;  but  without  that,  it  seems  to  us  death  and 
something  more,  an  unnecessary  infliction,  like  tor- 
menting a  condemned  person,  and  then  executing 


LIFE    OF    JUDGE    SMITH.  345 

him.  But  the  Christian  believes  this  Judge  does  not 
willingly  inflict  pain.  There  is  some  end  to  be  an- 
swered by  it,  though  he  knows  not  what  it  is.  His 
faith  and  trust  in  the  divine  goodness  alone  can  check 
the  rising  murmurs.  But  even  these  cannot  ease  his 
pain,  a  father's  pain  at  such  a  sight." 

But  soon  these  painful  impressions  passed  away, 
and  his  thoughts  of  her,  if  sometimes  accompanied 
with  a  feeling  of  loneliness,  were  all  pleasant.  The 
entries  in  his  common-place  book,  sometimes  quoted 
and  sometimes  original,  are  an  index  to  his  state  of 
mind. 

"  '  It  were  a  dull  house  ours,  were  we  to  lose 
Anne.'  "  Alas  !  Monday,  7th  September,  1829." 

"  A.  E.  S.  '  The  memory  of  love  is  to  me  far 
more  than  a  living  love  is  to  others  —  there  is  no 
passion  so  full  of  tender,  of  soft,  of  hallowing  asso- 
ciations, as  the  love  which  is  stamped  by  death. 
To  lose  this  would  be  dreadful.'  October  12, 
1829." 

In  a  letter  to  his  niece,1  Mrs.  Walker,  Judge  Smith 
said  :  "  I  thank  you  for  naming  your  daughter  for 
my  beloved  one,  now  no  more.  I  know  well  that 
the  number  is  very  small  who  knew  the  dear  de- 
parted as  I  knew  her.  Except  yourself  and  a  very 
few  others,  none  could  know  how  very  dear  she  was 


1  Sarah,  wife  of  James  Walker,  of  Peterborough,  and  daughter  of 
Judge  Smith's  brother  James,  a  woman  greatly  beloved  by  all  who 
knew  her.  She  had  assisted  in  taking  care  of  Ariana,  during  the  latter 
part  of  her  illness,  and  was  with  her  when  she  died.  There  was  no  one 
out  of  his  immediate  family  to  whom  Judge  Smith  was  more  tenderly 
attached.  She  and  her  uncle  died  of  the  same  disease,  and  within  a  few 
weeks  of  each  other. 


346  LIFE    OF    JUDGE    SMITH. 

to  me,  and  how  large  a  measure  of  my  happiness 
depended  on  her,  after  the  -death  of.  her  mother.  It 
is  the  recollections  of  her,  (what  she  was,)  that  now 
cheer  me  on  my  journey,  and  I  hope  and  believe 
they  will  continue  to  do  so  to  the  end.  So  far  from 
murmuring  at  my  irreparable  loss,  for  such  it  truly 
was,  Tarn  grateful  to  the  Giver  of  every  good  and 
perfect  gift,  that  she  was  lent  me  so  long.  I  most 
heartily  join  with  you  in  the  wish,  that  your's  may 
prove  as  great  a  blessing  to  her  parents,  and  that  she 
may  survive  you  both  —  a  greater  good  I  cannot  con- 
ceive of —  may  it  be  yours." 

Years  after,  when  his  domestic  circumstances  had 
entirely  changed,  he  carried  with  him  the  same  ten- 
der remembrance  of  his  daughter.  In  1836,  he  says, 
quoting  partly  from  "  The  Doctor,"  a  book  in  which 
he  greatly  delighted  :  "  Grief  had  acted  upon  her 
heart  like  the  rod  of  Moses  upon  the  rock  in  the 
desert  —  it  had  opened  it,  and  the  well-spring  of 
piety  gushed  out.  When  the  agony  of  bereavement 
had  passed  away,  the  intensity  of  J.  S.'s  affection 
became  a  source  of  consolation.  A.  E.  S.  became  a 
purely  ideal  object,  more,  not  less  dear  to  his  heart." 


The  idea  of  her  life  shall  sweetly  creep 

Into  his  study  of  imagination, 

And  every  lovely  organ  of  her  life 

Shall  come  apparelled  in  more  precious  habit, 

More  moving,  delicate,  and  full  of  life, 

Into  the  eye  and  prospect  of  the  soul, 

Than  when  she  lived  indeed.'  —  Shakspeare. 


It  may  be  that  the  sketch  which  I  have  given  of 
Miss  Smith  is  too  highly  colored,  and  that  her  true 


LIFE    OF    JUDGE    SMITH.  347 

image  has  become,  in  a  measure,  transfigured  in  the 
mind  of  one  who  knew  her  only  when  a  boy  ;  whose 
acquaintance  with  her  began,  on  her  part,  with  kind 
actions,  and  ended  in  kinder  wishes ;  with  whom  the 
impress  of  her. mind  and  person  has  gone  as  a  bright 
reality,  and  whom  her  death  first  taught  how  serene 
and  beautiful  a  thing  it  may  be  to  die.  . 

A  plain  marble  head-stone  marks  her  grave.  The 
inscription  upon  it  was  prepared  by  her  father  ;  the 
Latin  being  slightly  altered  from  Bishop  Lowth's  ex- 
quisitely written  epitaph  upon  his  daughter  : 

.  Ariana  Elizabeth, 

daughter  of 
Jeremiah  and  Elizabeth 

Smith. 

Born  28th   December,  1797. 
Died  20th  June,  1829. 

Cara,  vale  !    Ingenio.prsestans,  pielate,  pudbre, 
Et  plusquam  natae. nomine  cara,  vale  ! 
Ariaua,  vale  !     At  veniet  felicius  cevum 
Quando  iterum  ttcum,  sim  modo  dignus,  ero. 

This  world  was  not  the  world 
for-  thee. 


-.;••«  « 

v       • 


CHAPTER    XII. 

1829  —  1830. 

WILLIAM    SMITH HIS    SICKNESS  GOES     TO     MISSIS- 
SIPPI  HIS    DEATH. 

DURING  the  summer  after  his  daughter's  death,  Judge 
Smith's  time,  and  his  thoughts,  so  far  as  they  could 
be  spared  from  the  dead,  were  occupied  with  his  son. 
He  took  several  journeys  with  him,  —  among  them, 
one  to  the  White  Hills  —  consulting  the  ablest  phy- 
sicians, and,  under  their  advice,  making  the  most  of 
the  favorable  season  of  the  year.  In  September, 
William  left  home,  to  try  the  effect  of  a  milder  cli- 
mate. He  went  first  to  Washington,  thence,  by  a 
private  conveyance,  across  to  Wheeling,  and  down 
the  Ohio  to  Cincinnati,  where  he  spent  a  month  or 
more  with  his  cousin,  Jesse  Smith,  a  man  distin- 
guished as  a  physician,  and  who  a  few  years  after 
fell  a  victim  to  his  professional  zeal  and  fidelity,  dur- 
ing the  prevalence  of  the  cholera.  From  Cincinnati 
he  went  down  the  Ohio  and  Mississippi,  to  the  plan- 
tation of  another  cousin,  Robert  Smith,1  in  whose 

1  The  son  of  Judge  Smith's  brother  Robert,  who  died  in  1795. 


LIFE    OF    JUDGE    SMITH.  349 

family  he  spent  the  winter,  receiving  every  kindness 
and  attention  that  might  serve  to  cheer  his  mind,  or 
alleviate  his  bodily  sufferings.  It  was  a  sore  trial  for  him 
to  be  obliged  to  leave  home  under  such  circumstances. 
Anting  from  New  York,  September  27,  he  said  :  "  I 
can  assure  you,  my  dear  father,  that  I  felt  more  sad 
when  I  left  you,  than  I  ever  did  before.  My  ride  to  P. 
was  one  of  mournful  recollections.  If  the  objects  of 
my  travel  are  accomplished,  we  may  yet  be  very 
happy  together.  But  whatever  the  event  may  be,  be 
assured  that  I  do  hold  myself  firmly  bound  unto  you, 
to  leave  nothing  undone  which  will  have  a  tendency 
to  improve  my  health  and  my  character.  If  I  return 
to  you  in  better  health,  I  am  determined  that  you 
shall  find  me  improved  in  mind."  Philadelphia,  Oc- 
tober 4.  "  How  I  wish  that  I  was  to  spend  the  win- 
ter with  you.  How  sad  I  feel  in  places  where  I 
once  should  have  felt  so  gay.  I  think  a  thousand 
times  a  day  of  my  dear  mother  and  sister,  and  as 
often  of  you." 

His  journey  over  the  mountains  to  Wheeling,  was 
exceedingly  exhausting,  and  must  have  left  him 
much  worse  than  it  found  him.  But  at  Washington, 
and  elsewhere,  he  took  great  interest  in  political 
affairs,  and  in  whatever  was  characteristic  of  the 
people  and  the  country  through  which  he  passed. 
His  passage  down  the  Ohio  was  slow,  and,  amid  a 
crowd  of  travellers,  he  was  sad  and  solitary.  But  at 
Louisville  an  old  friend  and  townsman,  Nicholas  Oil- 
man, at  some  personal  inconvenience,  joined  him,  and 
travelled  several  days  in  the  same  boat.  William,  in 
a  letter  to  his  father,  acknowledged  his  obligations  to 


350  LIFE    OF    JUDGE    SMITH. 

this  "most  kind  and  affectionate  nurse,"  and  Mr. 
Gilman  said  of  him,  "  I  have  never  met  with  a  sick 
person  so  uncomplaining.  He  was  all  gratitude  for 
my  attentions,  and  it  afforded  me  great  happiness  to 
be  of  any  relief  to  him,  so  far  from  home  —  so  sick 
—  playmates  from  childhood  up.  Our  talk  of  home, 
of  by-gone  days,  made  me  feel  and  act  towards 
him,  &,c." 

William's  letters  to  his  father  are  full  of  a  tender, 
affectionate,  and  melancholy  interest,  recurring  often 
to  their  lost  friends,  and  to  those  whom  he  had  left 
behind.  January  11,  1830,  he  said  :  "  I  have  been 
reading  Middleton's  life  of  Cicero,  for  the  third  time, 
and  was  struck  with  the  resemblance  between  your 
affliction  and  that  of  C.  '  Tullia  was  about  two-and- 
thirty  years  old,  at  the  time  of  her  death,  and,  by 
the  few  hints  which  are  left  of  her  character,  appears 
to  have  been  an  excellent  and  admirable  woman  ; 
she  was  most  affectionately  and  piously  observant  of 
her  father  ;  and,  to  the  usual  graces  of  her  sex  hav- 
ing added  the  more  solid  accomplishments  of  know- 
ledge and  polite  letters,  was  qualified  to  be  the 
companion  as  well  as  delight  of  his  age.'  It  is  not 
strange  that  Middleton  adds,  as  the  greatest  calamity 
which  could  befall  him,  the  '  loss  of  such  a  daughter, 
in  the  prime  of  her  life,  in  the  most  comfortless 
season  of  his  own.'  He  sought  for  consolation  in  his 
library,  and  he  found  not  .consolation,  but  alleviation 
of  grief  in  that  forgetfulness,  which  devotion  to  inter- 
esting intellectual  pursuits  creates.  It  is  our  duty 
to  act  towards  the  dead  whom  we  loved,  as  towards 
the  living  —  to  remember  and  to  forget  them.  When 


LIFE    Or   JUDGE    SMITH.  351 

we  recall  them  to  recollection  and  bring  them,  as  it 
were,  down  from  heaven  to  earth,  it  should  not  be  in 
the  heat  of  the  day  ;  but  they  should  come  as  the 
angels  of  old  did,  when  they -visited  the  earth,  in  the 
peaceful  and  calm  shades  of  the  evening.  I  have 
no  doubt  that  Dr.  Abbott  gains  from  continuing  in 
active  life,  not  merely  from  its  effect  on  the  mind 
or  body,  (for  he  gains  by  keeping  up  his  phy- 
sical system,  which,  unemployed,  he  might  suffer  to 
run  down,)  but  for  its  effect  in  alleviating  his  grief 
for  the  loss  of  his  son  —  a  son  who  deserved  to  be 
grieved  for  long,  and  who  seemed  to  want  nothing  of 
the  angel  but  the  wings. 

"  The  kindness  of  my  friends  continues  unabated. 
In  kind  and  judicious  counsel,  Robert  is  a  father, 
and  in  affectionate  nursing,  a  sister  and  mother.  In 
one  respect  my  case  resembles  that  of  our  dear  Ariana, 
who  said,  you  know,  that  it  should  be  recorded  on 
her  monument  that  she  '  died  of  the  kindness  of  her 
friends.'  Would  to  heaven  that  I  could  enjoy  her 
calm  patience,  her  holy  resignation." 

Centreville,  January  23,  1830.  "  I  am  very  anx- 
ious to  hear  of  Colonel  Walker  '  and  family.  When  I 
was  in  the  crisis  of  my  fever  at  P.,  Colonel  Walker 
called  to  see  me,  but  was  refused  admission,  as  every 
one  else  was.  '  I  am  sure,'  he  replied,  '  he  will  see 
an  old  friend  like  me.'  I  directed  them  to  invite 
him  to  come  up.  He  came  and  sat  down  by  my 


1  Colonel  Seth  Walker,  one  of  the  kindest  of  men,  for  many  years 
Register  of  Deeds  in  Rockingham  county.  He  died  in  1832.  "  I  have 
shown,"  says  J.  S.  to  W.  S.,  "  your  letter  to  Colonel  Walker ;  it  brought 
tears  into  his  eyes  —  your  mention  of  him  and  his  family." 


352  LIFE    OF    JUDGE    SMITH. 

bed,  and  for  some  moments  said  nothing.  Just 
before  he  rose  to  leave  me  he  took  my  hand,  and 
expressed  his  belief  in  my  recovery  in  language  -so 
encouraging,  and  his  wishes  for  my  recovery  in  words 
so  warm  and  affectionate,  as  to  make  the  blood  rush 
through  every  vein.  I  was  somewhat  overcome  by 
the  interview.  But  when  I  got  over  that,  the  recol- 
lection of  it  gave  a  nerve  to  my  system,  and  I  then 
said,  that  from  thai  time  I  dated  the  beginning  of  my 
recovery.  Let  me  hear  of  him." 

In  a  letter  to  his  father,  dated  February  7,  he 
says :  "  That  spirit  of  liberality,  which  you  have 
always  shown  towards  me  in  money  matters,  and  I 
should  say  especially  in  them,  if  I  did  not  perceive 
the  operation  of  the  same  spirit  in  all  other  matters 
between  us  from  the  beginning,  &c."  ...  "I  spend 
many  hours  of  every  day  with  you.  I  look  in  upon 
you  when  at  study.  I  am  with  you,  in  full  sym- 
pathy, during  your  hours  of  sad  reflection."  Feb- 
ruary 20.  «  P.  S.  — Sunday,  P.  M.  I  have  just 
come  across  an  odd  volume  of  Seed's  sermons,  and 
have  read  two  of  them  with  delight.  .  .  .  Do  you 
remember  the  discourse  on  a  particular  Providence, 
containing  just  enough  of  argument  for  the  ingenious 
thinker,  and  enough  of  glowing  exhortation  for  the 
warm-hearted  Christian  ? "  In  reply,  J.  S.  says  : 
"  Your  character  of  Seed's  sermons  is  just.  I  have 
the  same  odd  volume,  and  think  just  so  of  the  ser- 
mon on  a  particular  Providence." 

Judge  Smith's  letters  to  his  son  were,  of  course, 
mostly  taken  up  with  the  little  items  of  domestic  in- 
telligence, which  are  so  grateful  to  those  who  are 


LIFE    OF    JUDGE    SMITH.  353 

away  from  home.  They  also  show  what  were  his  feel- 
ings, and  how  he  employed  his  time.  "  Nov.  5,  1829. 
I  have  returned  to  the  task  of  hunting  up  the  acad- 
emy lands  with  no  other  guide  but  old  deeds,  two  or 

three  hundred  accounts,  minutes,  &c I  am 

not  sanguine  as  to  success,  but,  to  tell  you  a  secret, 
I  must  have  employment.  My  unemployed  hours 
are  heavy.  I  have  one  subject  only  to  exercise  my 
thoughts  upon,  and  that  unfits  me  for  the  living. 

Everything    I  see  and   hear    is    so  unlike 

I  think,  as  at  present  advised,  I  shall  not  spend  the 
winter  at  the  Tremont  house,  but  in  my  own  comfort- 
able home." 

It  was  a  winter  of  heavy  pecuniary  embarrass- 
ments and  failures  in  Exeter,  and  this  brought  upon 
Judge  Smith,  as  president  of  the  bank,  and  treasurer 
of  the  academy,  no  small  increase  of  labor.  After 
giving  an  account  of  these  reverses,  he  says,  "  You 
can  conceive  of  the  exercise  of  tongues  here  —  all 
wag.  Little  of  all  I  have  stated  is  generally  (accu- 
rately) known,  but  enough  to  set  that  little  machine 

a-going It  is  a  solemn  business,  transferring 

the  funds  of  the  bank  from  the  late  to  the  present 
cashier.  *  *  *  *  himself  seems  to  feel  it  so."  — 
"Strange  that  people  cannot  see  a  little  way  into 
the  future."  .  ..."  It  seemed  very  odd  to  me  to 
return  every  night  for  a  fortnight  of  this  rough 
weather,  take  my  meals  all  alone,  and  have  not  a 
mortal  to  speak  to  of  the  thousand  things  daily  and 
hourly  occurring." 

6th    February.     "I  am  very  well.     Proof — no- 
thing but  shame    prevented  my  doing  the  duty  of 
30* 


354  LIFE    OF    JUDGE    SMITH. 

cashier.  The  public  would  have  cried  out,  avarice  ! 
and  appearances  would  have  been  against  me.  The 
world  cannot  know  how  much  I  love  employment. 
How  can  our  young  men  love  idleness  ?  To  me  it  is 
inconceivable.  If  the  evidence  were  not  before  my 
eyes,  I  should  doubt  the  fact.  Do  you  not  feel  as  if 
you  would  like  to  be  register  of  deeds  ?  " 

1st  March.  "I  wish  you  had  the  book  I  have  just 
finished  —  Second  Series  of  Tales  of  a  Grandfather. 
They  are  excellent ;  the  most  interesting  parts,  from 
I.  James  VI.,  1603,  to  the  union  of  1705,  are  served 

up  in  Sir  Walter's  best  manner He  unites 

simplicity,  good  taste,  wit,  impartiality,  boldness,  can- 
dor, shrewdness,  sound  judgment,  a  philosophic  spirit, 
&c.  These  volumes  have  amused  me  much,  as  much 
as  Old  Mortality.  He  is  a  shrewd  Scotchman.  Hea- 
ven grant  he  may  hold  out  my  time.  When  I  am 

gone,  he  may  go  as  soon  as  he  will These 

Tales  of  a  Grandfather  will  do  something  to  promote 
the  morality  of  government.  Would  that  they  might 
teach  our  small  New  Hampshire  rogues  good  man- 
ners. You  know  the  election  is  now  going  on,  which 
reminds  one  strongly  of  good  breeding —  lucusanon 
lucendo." 

"...  I  am  in  no  danger,  I  think,  of  writing  a 
history  of  Exeter,  or  any  other  history.  I  have  not 
been  so  much  engaged  for  many  years  as  in  the  last 
three  months.  Providence  seems  to  provide  work 
for  me,  knowing,  I  suppose,  that  it  is  good  for  me. 
I  verily  think  it  is  so.  It  is  a  great  objection  to  the 
grave  that  there  is  no  work  there." 

22d  March.     "  It  is  too  late  in  the  day  to  talk 


LIFE    OF    JUDGE    SMITH.  355 

about  the  moral  character  of  the  candidate.  Moral 
character  is  a  good  thing,  but  has  little  or  nothing  to 
do  with  an  election.  One  likes  to  have  one's  con- 
nexions and  friends  moral,  but  one's  governor,  it  is 

toute  autre  chose Your   cousins    [deaf  and 

dumb]  have  sent  you  and  me  each  two  pairs  of  fine 
woollen  hose,  spun  and  knit  by  themselves,  with  a 
pretty  letter.  E.  says,  Ariana  used  to  knit  for  her 
father,  and  now  that  she  is  in  heaven,  she  and  her 
sisters  determined  in  this  to  supply  her  place.  If 
they  live  good  and  virtuous  lives  here,  she  has  no 
doubt  of  meeting  her  in  heaven.1  ...  I  need  not 
tell  you  that  I  am  very  well.  If  I  could  only  get  rid 
of  meals  and  evenings,  I  should  do  well,  provided  I 
had  plenty  of  business  to  do.  If  I  could  step  into 
your  house  now  and  then,  I  should  be  glad.  I  sup- 
pose you  would  gladly  return  the  visit.  We  must 
each  do  the  best  we  can  as  it  is.  I  hope,  after  an- 
other winter  and  spring  in  Mississippi,  you  will  come 
to  us  with  confirmed  health,  and  will  help  the  good 
here  to  maintain  their  ground  against  the  bad.  God 
bless  you,  prays  yours  always,  J.  S." 

1  Judge  Smith  always  took  a  warm  interest  in  these  nieces,  and  did  not 
forget  them  in  his  last  sickness.  They  were  educated  at  Hartford,  and 
once,  as  I  find  in  a  memorandum  made  by  Judge  Smith,  when  on  their  way 
home,  were  met  by  a  Connecticut  lawyer,  who  had  the  following  conver- 
sation with  one  of  them  in  writing.  "  Do  you  love  your  enemies  ?  " 
Ans.  —  "  I  ought  to  love  my  enemies,  but  sometimes  I  forget."  "  Did 
Christ  die  for  all  sinners  ?  "  Ans.  —  "  For  all  that  trust  in  him.  None 
benefited  by  bis  death  but  those  who  believe  and  trust  him."  A  lady 
present  wished  the  following  question  to  be  put.  "  Is  the  power  of 
Christ  equal  to  that  of  the  Father  ?  "  The  gentleman  at  first  declined, 
as  touching  on  a  doctrine  of  scholastic  divinity,  and  beyond  their  reach  ; 
but,  on  being  urged,  he  put  it.  Ans.  —  "  Jesus  Christ  has  no  power,  but 
what  is  derived  from  the  Father.'" 


356  LIFE    OF    JUDGE    SMITH. 

24th  March.  "  I  lodged  at  the  same  house  with 
J.  R.,  beginning  the  practice  at  D.  He  must,  I  think, 
advance  slowly  ;  he  has  more  talents  than  he  seems 

to  have.  If  would  lend  him  a  little  owlish 

wisdom,  it  would  profit  him.  He  may  make  a 

lawyer.  The  matter  is  still  in  dubio  with . 

He  is  wanting  to  himself,  having  the  capabilities.  A 
few  years  settle  every  man's  case,  rank,  standing.  I 
understand  the  jury  (the  world)  have  given  in  their 
verdict.  Possibly  he  may  review.  ...  I  had  some 
curiosity  to  see  how  the  fall  in  Exeter  and  of  Exeter 
would  affect  you.  Time  will  cure  the  breach,  and 
perhaps  mend  our  condition.  It  is  always  a  great 
point  gained  to  know  our  true  condition,  and  ship  off 
our  foolish  pride.  But  none  of  these  things  move 

the  dull  and  heavy .  Strange  that  he  does  not 

at  once  march  up  and  take  the  Sheridan  oath,  '  It  is 
in  me,  and  by  •* it  shall  come  out.'  " 

After  the  first  fatigue  was  over,  the  Mississippi 
climate  seemed  to  be  of  great  service  to  Mr.  Smith. 
In  a  letter  dated  27th  December,  he  says  :  ."  I  have 
had  delightful  rides  on  horseback.  It  is  impossible 
for  you  to  imagine  the  happiness  I  felt  as  I  cantered 
over  the  plantation  paths,  through  woods  abounding 
with  the  most  splendid  evergreens  I  ever  saw,  and 
my  ears  filled  with  the  music  of  sweet  singing  birds. 
As  I  rode,  life  seemed  to  come  to  me  in  the  smell  of 
the  fragrant  pines.  I  do  not  mean  to  exaggerate 
when  I  say,  that  thrills  of  returning  health  ran 
through  my  whole,  system,  so  exquisite  as  almost  to 
occasion  faintness."  In  the  last  letter  that  he  ever 
wrote  with  his  own  hand  to  his  father,  (Feb.  21,)  he 


LIFE    OF    JUDGE    SMITH.  357 

says,  "  I  have  gained  in  one  month  and  two  days  no 
less  than  five  pounds  of  good  sound  flesh,  which  I 
have  laid  out  in  ornamental  work."  The  next  letter 
that  his  father  received  was  written  by  William's 
physician,  and  left  no  reasonable  hope  of  his  re- 
covery. It  contained  these  lines,  dictated  by  Wil- 
liam. "  My  dear  father :  you  know  what  satisfaction 
it  would  give  me  to  be  able  to  write  to  you,  at  this 
time,  with  my  own  hand ;  but  you  know,  too,  just 
what  the  sentiments  would  be,  which  a  letter  written 
under  the  present  circumstances,  would  contain.  I 
hope  that  a  change  will  shortly  take  place  for  the 
better.  May  God  bless  you  and  me,  and  prepare  us 
both  for  his  holy  will  and  pleasure  concerning  me." 

To  this  Judge  Smith  replied.  April  10.  "  My 
dear  William  :  I  have  Dr.  Magoun's  letter,  post- 
marked 15th  March,  and  Robert  Smith's,  same  date. 
I  need  not  say  how  they  affect  me.  I  have  not,  I 
hope,  neglected  you  in  my  prayers.  Heaven  knows 
with  what  earnestness  and  sincerity  I  have  prayed 
for  your  recovery.  I  can  join  you  from  the  bottom 
of  my  heart.  '  May  God  bless  you  and  me,  and 
prepare  us  both  for  his  holy  will.'  At  this  time,  as 
you  say,  it  would  give  me  a  pleasure  I  cannot  ex- 
press, to  have  a  letter  in  your  own  hand,  though  I 
can  well  enough  imagine  what  it  would  contain,  and 
would  not  have  you  spend  any  strength  in  writing. 
I  am  very,  very  glad  you  are  with  your  cousin,  and  Dr. 
M.  your  nurse.  .  .  .  Though  I  have  no  fears  that  you 
will  lack  any  nursing  and  attentions,  it  would  still 
afford  me  the  highest  satisfaction,  your  situation  will 
allow  me,  to  be  with  you.  Two  months  ago  I  se- 


358  LIFE     OF     JUDGE     SMITH. 

riously  thought  of  setting  out,  but  your  altered  ac- 
counts rendered  the  journey  unnecessary.  I  cannot 
but  hope  that  the  account  of  you  from  Dr.  M.  will 
prdve  to  have  been  the  effect  of  the  return  of  your 
complaints  for  a  short  season,  and  that  this  will  find 
you  better. 

"  God  grant  the  next  letter  may  tell  me  so.  In 
the  meantime,  I  pray  God  to  bless  you,  and  to  give 
you  strength  and  fortitude  in  this  time  of  need.  Your 
affectionate  father." 

Whatever  of  lingering  hope  may  have  remained 
was  soon  lost.  Twelve  days  before  the  date  of  this 
letter,  another  had  been  written  by  Robert  Smith. 
"  Your  son  William  has  left  us.  He  expired  this 
morning  at  a  quarter  before  six.  The  last  words  he 
spoke,  which  was  a  few  minutes  before  he  died,  were 
to  request  me  to  bury  him  beside  my  two  little  boys." 

From  Judge  Smith  to  Mrs.  Walker,  April  23, 
1830.  "  What  we  feared  has  come  to  pass.  Wil- 
liam is  no  more.  The  account  comes  to  me  from 
Robert,  immediately  after  he  expired,  which  was 
Monday  morning,  29th  March.  The  letters  of  the 
two  preceding  weeks  had,  in  some  measure,  prepared 
me  for  this  event,  but  we  are  never  fully  prepared. 
Indeed  the  event  of  the  20th  of  June,  of  which  you 
were  a  witness,  returns  fresh  upon  me.  No  words 
can  express  how  precious  her  sympathy  would  now 
be.  When  he  was  first  sick,  two  years  ago,  and 
she  quite  well,  we  thought  it  not  improbable  that  we 
both  might  survive  him.  Alas  !  I  now  alone  remain. 
It  is  a  great  consolation  to  me  to  believe  that  poor 
William,  in  his  last  days,  was  among  friends,  kind, 


LIFE    OF    JUDGE    SMITH.  359 

sympathizing  friends,  and  had  the  excellent  nursing 
of  his  old  friend,  Dr.  Magoun,  who  proposes  re- 
maining in  Mississippi." 

In  another  letter  of  the  same  date,  he  says  :  "  May 
you  never  experience  what  is  now  my  case,  the  sad 
thought  of  having  outlived  all  who  love  you." 

The  rapidity  with  which  thoughts  the  most  diverse 
flash  upon  the  mind,  in  the  intensity  of  its  emotions, 
is  one  of  the  strange  facts  connected  with  our  na- 
ture. There  is  a  mild  and  soothing  sorrow,  which 
we  dwell  upon  with  fondness,  and  in  which  we  cher- 
ish only  those  images  and  impressions,  which  har- 
monize with  the  general  sadness  of  our  feelings.  But 
there  is  a  sense  of  bereavement  so  intense,  that  the 
mind,  as  if  to  forget  its  desolation,  turns  away  invol- 
untarily to  its  accustomed  occupation,  and,  by  a  sort 
of  mechanical  force,  fastens  itself  there,  pursuing 
for  a  time,  almost  unconsciously,  its  usual  train  of 
thought.  The  above  letter  was  written  on  Friday. 
On  Saturday  Judge  Smith  made  this  entry  in  his 
common-place  book :  "  Junius  said,  '  I  weigh  every 
word,'  and  every  alteration  is  a  blemish.  His  style 
was  correct  and  elegant.  Sir  Walter  Scott  does  not 
stop  at  any  word  ;  he  weighs  the  sense,  and  conse- 
quently is  full  of  errors  in  language,  and  beauty  of 
sentiments  and  composition."  On  Sunday  the  fol- 
lowing note  was  read  in  the  church  where  he  wor- 
shipped :  "  Jeremiah  Smith  desires  prayers  that  the 
recent  death  of  his  son,  the  last  of  his  family,  in  a 
distant  state,  may  be  sanctified  to  him,  and  that  this 
thrice-repeated  stroke  of  Divine  Providence  may  serve 
to  prepare  him  for  his  departure  hence,  whenever  the 
summons  shall  come." 


360  LIFE    OF    JUDGE    SMITH. 

Judge  Smith,  to  Robert  Smith,  of  Mississippi. 
May  1,  1830.  "  My  dear  nephew  :  I  have  received 
your  letter  of  the  29th  of  March,  written  a  few  min- 
utes after  William's  death.  Your  and  Dr.  Magoun's 
letters,  for  the  two  preceding  weeks,  had,  in  some 
measure,  prepared  me  for  the  sad  tidings.  I  have 
delayed  writing  for  some  days,  expecting  a  letter  giv- 
ing a  more  particular  account  of  his  life  for  the  last 
three  weeks.  There  is  a  melancholy  satisfaction  in 
learning  the  state  of  the  poor  sufferer  in  the  last 
scene  ;  how  he  met  that  enemy  who  is  sure  to  con- 
quer ;  the  exercises  of  his  mind  ;  his  confidence  in 
his  Maker,  when  all  earthly  help  fails,  &c.  His  sis- 
ter exceeded  anything  I  ever  witnessed.  She  seemed 
wonderfully  supported,  perfectly  resigned  and  sub- 
missive to  the  will  of  God.  It  is  not  strange  I  should 
now  recur  to  her  last  moments.  How  precious  would 
her  sympathy  now  be  to  me  ! 

"  I  am  alone  in  the  wide  world,  '  a  single  column, 
unpropped  and  nodding  to  its  fall.'  I  cannot  find 
words  to  express  the  satisfaction  it  gives  me  to  be- 
lieve, that  William  had  every  attention,  kindness  and 
comfort,  after  he  reached  your  house.  It  could  not 
save  his  life,  but  it  must  have  eased  his  pain  and  soft- 
ened his  couch.  In  his  letters  he  spoke  in  grateful 
terms  of  your  and  your  wife's  uniform  kindness  to 
him,  and  I  know  Dr.  M.  must  have  been  all  that  we 
could  desire." 

In  a  letter  to  J.  H.  Morison,  after  using  the  same 
figure  of  a  single  column,  &c.,  he  adds  :  "  But  it  is 
far  from  my  intention  to  be  misanthrope  or  cynic,  if 
I  can  help  it,  or  to  let  the  aforesaid  column  hurt  any 


LIFE     OF     JUDGE     SMITH.  361 

body  in  its  descent,  as  descend  it  must,  and  that  ere 
long.  But  I  am  yet  very  well,  and  more  happy,  or 
rather  less  unhappy  than  I  feared." 

In  his  common-place  book  he  wrote,  June  12, 
" '  Be  not  solitary,  be  not  idle,'  the  last  I  can  com- 
mand." "  I  have  certainly  enough  of  that  perilous 
stuff  that  weighs  upon  the  heart." 

It  was  not,  perhaps,  till  after  the  death  of  his 
daughter,  that  Judge  Smith  had  begun  to  appreciate 
fully  the  character  of  his  son,  and  to  feel  towards 
him  all  the  tenderness  of  a  father.  In  one  place, 
after  quoting  the  words  "  we  can  only  have  one 
mother,"  he  adds:  "It  seems  to  me  I  could  only 
have  one  child.  Forgive  me,  W."  Judge  Smith 
was  not  given  to  regrets,  but  is  not  this  an  affecting 
confession  of  partiality,  with  an  acknowledgment  that 
it  was  not  right  ? l 

"  I  live,"  he  said,  "  in  solitary  majesty  ;  in  oriental 
seclusion,  in  the  realm  of  silence  and  the  land  of 
oblivion  ;  left  at  large  to  pursue  my  own  designs, 
whatever  they  may  be."  "  I  hope,"  he  said  again, 
borrowing  the  expression,  1  believe,  in  part  from 
Oberlin,  "  that  I  bear  my  losses  of  dear  friends  as  I 
ought,  not  from  that  lightness  or  elasticity  of  mind 
which  flies  from  all  painful  thoughts,  not  from  that 


1  There  is  something  quite  touching  iu  what  I  find  written  in  half 
sentences,  as  e.  g.  "  §£3=  '  A  falling  house,  with  a  single  column  left, 
(and  that  tottering  to  its  fall).'  Iphigenia's  dream.  The  single  column 
in  the  dream  was  Orestes,  here,  I. 

'  Wo  unto  him  who  leads  a  lonely  life 
From  children  and  from  kindred  banished  far,'  "  &c. 

31 


362  LIFE    OF   JUDGE    SMITH. 

hard  and  hardening  philosophy,  which  submits  with 
sullen  pride  to  what  is  inevitable,  but  from  an  entire 
submission  to  that  Providence  which,  having  made  all 
things  in  goodness,  orders  them  in  mercy." 

On  looking  over  what  I  have  written,  I  fear  that  I 
may  have  given  too  unfavorable  a  picture  of  William 
Smith.  His  faults  were  the  striking  incidents  in  a 
life,  whose  virtues,  belonging  to  its  every  day  current, 
cannot  be  so  described  as  to  fill  out  in  his  biography 
the  space  they  occupied  in  the  daily  course  of  events. 
It  has  been  a  painful  task  to  dwell  on  his  infirmities. 
But  when  I  remember  how  they  caused  his  day, 
which  dawned  with  so  much  promise,  to  close  in 
darkness  before  its  time  ;  when  I  call  to  mind  how 
bitterly  he  mourned  over  the  errors,  through  which 
his  early  hopes  and  the  expectations  of  his  friends 
were  blasted,  and  how  solemnly  he  warned  others 
against  them  ;  I  feel  it  to  be  a  duty,  which  his  kind 
and  generous  spirit  requires  of  me,  to  add  his  to 
the  thousand  examples  already  existing,  of  a  noble 
mind,  with  all  the  advantages  of  education  and  so- 
ciety, given  in  vain,  from  the  want  of  a  strong  and 
steadfast  purpose  in  life.  If  the  great  assembly  of 
the  gifted  young,  who  have  thus  wasted  time,  for- 
tune, character,  health,  hope,  and  life,  could  be  per- 
mitted to  come  back,  with  Robert  Burns  at  their 
head,  and  exhibit  all  that  they  have  suffered,  in  order 
to  warn  those  who,  with  the  same  rash  confidence, 
are  entering  now  upon  the  same  career  of  folly  and 
of  ruin,  I  can  conceive  of  no  spectacle  at  once  so 
touching  and  so  sad. 

It  is  a  great  satisfaction  to  be  able  to  introduce 


LIFE    OF    JUDGE    SMITH.  363 

here  the  testimony  of  one  '  who,  in  antiquarian  zeal 
and  knowledge,  was  inferior  to  no  man  in  New  Eng- 
land, and  whose  death,  while  yet  in  the  vigor  of  life, 
was  a  public  calamity.  He  had  for  some  time  cor- 
responded with  William  Smith  on  historical  matters  ; 
and  in  June,  1830,  wrote  to  Judge  Smith  :  "  My 
acquaintance  with  your  son  was  very  limited,  but 
enough  to  convince  me  of  his  genius  and  talents, 
and  to  lament  that  such  brilliant  powers  should  be 
forever  extinguished.  As  a  member  of  the  Histo- 
rical Society,  much  was  expected  from  him,  and,  had 
he  lived,  much  would  doubtless  have  been  realized. 
It  is  much  to  be  regretted  that  he  did  not  complete 
his  History  of  Exeter,  as  the  ardor  and  zeal  with 
which  he  entered  on  the  work,  the  extended  and 
liberal  plan  he  had  contemplated,  the  wide  range  of 
his  inquiries  and  researches,  insured  one  of  the  most 
perfect  local  histories  that  have  appeared  in  our  sec- 
tion of  the  country.  I  hope  the  materials  he  col- 
lected have  been  left  in  such  a  state,  that  they  may 
yet  be  arranged,  and  presented  in  the  form  of  a  his- 
torical deduction.  Without  dwelling  on  this  subject, 
I  would  most  respectfully  suggest  the  propriety  of 
having  something  of  him  preserved  in  the  form  of  a 
memoir  ;  something  which  shall  appear  in  a  future 
volume  of  the  collections  of  a  society,  of  which  he 
was  one  of  the  founders,  and  an  active  member. 
One  object  of  our  society  is  to  preserve  memorials  of 
our  associates  who  have  finished  their  course  on  earth. 
I  cannot  but  hope  that  you  will  favor  the  society 

1  John  Farmer. 


364  LIFE    OF   JUDGE    SMITH. 

with  some  sketch  or  something  more,  which  shall  per- 
petuate his  memory." 

The  following  obituary  notice,  drawn  up  by  a 
friend,1  who  knew  William  Smith  well,  and  who 
could  appreciate  his  excellent  qualities  of  mind  and 
heart,  may  serve  as  a  fitting  close  to  this  melancholy 
chapter.  "  Colonel  Smith  was  a  gentleman  of  early 
and  much  promise  in  professional  and  political  life 
—  having  been  admitted  to  the  bar  at  about  the  age 
of  twenty-one,  and  returned  as  a  member  of  the  le- 
gislature of  New  Hampshire  in  his  twenty-third  year. 
He  represented  Exeter  with  fidelity  and  ability,  for 
three  successive  terms.  His  health,  constitutionally 
delicate,  had  been  gradually  failing  for  two  or  three 
years  prior  to  his  decease.  He  was  induced  to  try 
the  effect  of  a  milder  climate  in  ameliorating  his  dis- 
ease, and  the  result  of  a  winter's  residence  at  the 
west  seemed,  for  a  time,  to  be  very  favorable.  But 
the  hopes  of  his  friends  have  been  blasted,  and  the 
only  remaining  tendril  that  wreathed  around  the  soli- 
tary pillar  of  a  noble  house,  has  been  severed  from  the 
stately  column  it  was  designed  to  have  strengthened 
and  supported." 

1  George  Kent,  Esq.,  of  Concord,  N.  H. 


CHAPTER   XITI. 

1830  —  1834. 

JUDGE  SMITH'S  STUDIES  —  LECTURES  ON  THE  PURSUIT 

OF    KNOWLEDGE  SECOND    MARRIAGE  SAYINGS 

AND  LETTERS. 

JUDGE  SMITH  was  now  left  entirely  alone.  His  do- 
mestic affections,  which  were  among  the  strongest 
feelings  of  his  nature,  had  nothing  to  rest  upon.  I 
was  with  him  much  in  those  his  times  of  tribulation, 
and  do  not  think  he  ever  knew  what  it  was  to  pass  a 
desponding  day.  The  outward  current  of  his  life 
flowed  on  almost  as  brightly  as  before ;  for,  if  the 
lights  of  his  home  had  been  withdrawn,  more  of  the 
light  of  heaven  rested  upon  it.  Much  is  to  be  attri- 
buted to  the  natural  elasticity  of  his  mind,  and  more 
to  his  religious  convictions.  But  how  many  devout 
men  break  down  under  such  circumstances,  purely 
because  they  find  nothing  to  do,  which  has  interest 
enough  to  engage  their  attention  !  They  muse  upon 
their  sorrows,  till  they  have  no  heart  for  anything 
else.  They  shrink  from  society,  and  society  shrinks 
from  them.  The  solitude,  which  Providence  had 
31* 


366  LIFE    OF    JUDGE    SMITH. 

made  to  last  but  for  a  season,  is  thus  enlarged  and 
perpetuated  by  the  selfishness  of  their  grief;  their 
faculties  fail  for  want  of  exercise,  and  the  sad  rem- 
nant of  their  days  is  burthensome  to  themselves  and 
to  all  about  them.  Judge  Smith  did  not,  for  a  single 
week,  give  up  his  usual  occupation.  He  continued 
in  the  pursuit  of  knowledge  with  all  the  freshness  of 
his  youthful  affections ;  and  considered  it,  as  we 
have  already  seen  from  his  letters  to  William,  a  mer- 
ciful dispensation  which  had  greatly  increased  his 
labors  in  business.  "  Did  you  never,"  he  asked, 
"  feel  and  enjoy  the  pleasure  of  ease  after  labor,  and 
the  pleasure  arising  from  the  reflection  that  you  had 
done  something  to  increase  the  stock  of  your  intel- 
lectual and  moral  powers,  or  even  your  wealth  ?  " 
Labor,  as  well  as  virtue,  was  to  him  its  own  reward. 
He  settled  his  son's  affairs,  which  had  been  left  in  a 
perplexed  and  embarrassed  condition,  and  paid  his 
debts.  He  examined  and  arranged  all  his  and  his 
daughter's  papers.  In  1828,  he  had  succeeded  Gov. 
Oilman  as  a  trustee  of  Phillips  Exeter  Academy,  and 
soon  after  was  appointed  treasurer,  which  made  it  his 
duty  to  draw  up  an  annual  report  of  the  funds  of  the 
academy.  Owing  to  the  disordered  state  in  which  he 
found  them,  he  examined  their  history  from  the  be- 
ginning, inspecting  carefully  all  the  records  and  other 
papers  which  had  been  accumulating  for  nearly  half 
a  century.  This  required  of  him  more  than  a  year 
of  solid  labor ;  and  his  reports  might  be  recom- 
mended as  models,  uniting  with  accuracy  and  clear- 
ness in  minute  details,  those  sound  and  comprehen- 
sive principles,  by  which  the  affairs  of  such  an  insti- 


LIFE    OF    JUDGE    SMITH.  367 

tution  ought  to  be  administered.     It  was  a  subject 
which  he  had  greatly  at  heart  as  long  as  he  lived. 

He  was  much  interested  in  the  popular  movements 
for  the  diffusion  of  useful  knowledge,  which,  begun  a 
few  years  before  in  England,  had  then  just  reached 
this  country.  He  went  through  quite  an  extended 
course  of  reading  on  the  natural  sciences.  During 
his  daughter's  sickness  he  had  read  several  treatises 
on  consumption,  and  now,  with  the  eagerness  of  a 
young  man,  went  into  the  whole  subject  of  physi- 
ology, but  particularly  that  portion  of  it  which  is 
called  animal  mechanics.  This  science,  not  less  than 
the  most  magnificent  and  stupendous  of  all  sciences 
—  that  which  treats  of  the  heavenly  bodies  —  led 
him  to  bow  in  reverence  and  humility  before  the  Al- 
mighty Creator.  The  weakness  of  our  own  frames 
was  to  him  an  evidence  of  the  divine  wisdom  and 
goodness,  through  which  they  had  been  formed. 
"  The  liability  to  pain  and  injury,"  he  said,  "  only 
proves  how  entirely  the  human  body  is  formed  with 
reference  to  the  mind,  and  to  a  state  of  trial  and  dis- 
cipline ;  since,  without  the  continued  call  to  exertion, 
which  danger  and  the  uncertainty  of  life  infer,  the 
development  of  our  faculties  would  be  imperfect, 
and  the  mind  would  remain,  as  it  were,  uneducated. 
It  is  one  thing  to  make  a  machine  for  the  purposes 
of  the  body  only,  and  another  to  make  a  machine 
for  a  body  with  a  mind  and  soul.  Weakness  and 
liability  to  injury,  therefore,  imply  no  imperfection  in 
the  frame  of  our  bodies.  A  deep  contemplation  of 
the  subject  will  evince  the  incomparable  perfection 
both  of  the  plan  and  execution.  The  body  was  in- 


368  LIFE    OF    JUDGE    SMITH. 

tended  by  our  all-wise,  all-good  and  merciful  Cre- 
ator to  be  subject  to  derangement  and  accident,  and 
to  become  in  the  course  of  life  more  and  more  fra- 
gile, until,  by  some  failure  in  the  frame-work  or  vital 
action,  life  terminates.  That  the  soul  may  live,  this 
tabernacle  of  clay  must  be  dissolved  and  perish." 

Geology  he  examined  with  the  same  feeling  of  de- 
vout admiration.  "It  brings  us,"  he  says,  (and  I 
quote  his  words  to  illustrate  his  habits  of  thought, 
rather  than  because  they  are  original,  for  they  were 
probably  borrowed,  in  part  at  least,  from  some  of  the 
treatises  which  he  had  been  reading,)  "  into  intimate 
acquaintance  with  the  noblest  objects  and  phenom- 
ena of  nature  —  with  the  grand  features  of  mountain 
scenery  —  their  towering  summits  —  their  eternal 
snows  —  the  abrupt  waterfall — the  river  now  tumb- 
ling and  foaming  through  a  narrow  gorge,  now 
gently  rippling  over  an  expansive  valley,  now  wind- 
ing through  wide  alluvial  plains  to  the  bosom  of  the 
mighty  ocean  —  with  earthquakes,  volcanoes,  and 
the  flood  which  drowned  the  ancient  world.  What 
mighty  changes  have  been  produced  in  the  earth  by 
these !  —  now  rounding  a  pebble,  now  laying  the 
foundation  of  future  islands  and  continents.  The 
constant  progress  of  animated  existence,  ever  varied, 
but  ever  adapted  to  the  circumstances  which  attend 
it ;  —  who  can  contemplate  without  religious  awe  and 
veneration,  the  arrangements,  whether  of  the  organic 
or  mineral  world,  (the  sure  marks  of  a  First  Cause.) 
acting  by  uniform,  invariable  laws,  bringing  order 
and  utility  out  of  the  seeming  elements  of  chance 
and  confusion ;  connecting  the  peak  of  the  mountain 


LIFE    OF    JUDGE    SMITH.  *          369 

and  the  bottom  of  the  ocean  in  one  chain  of  mutual 
dependence,  and  rendering  the  whole  subservient  to 
the  existence  of  that  abundance  of  life  and  enjoy- 
ment, for  which  all  has  been  beneficently  contrived." 

In  the  winter  of  1830-1,  Judge  Smith  zealously 
engaged  with  several  gentlemen  of  the  village  in 
getting  up  something  like  a  Lyceum  in  Exeter,  "  less," 
as  he  said,  "  with  a  view  of  teaching  others,  than  of 
stirring  them  up  to  teach  themselves."  He  gave  the 
first  lecture,  and  the  last,  of  the  course.  He  spared 
no  pains  or  labor  in  the  preparation,  and  transcribed 
more  than  once  or  twice  the  greater  part  of  what  he 
wrote.  "  Speaking  of  myself,"  he  said,  "  I  set  down 
the  labor,  which  my  small  part  in  the  concern  im- 
poses, as  nothing.  Indeed,  I  am  persuaded  that  there 
is  nothing  better  for  a  man,  all  the  days  of  his 
life  here  upon  earth,  than  labor  spent  in  a  good 
cause  ;  and  such  I  believe  this  to  be.  It  would  give 
me  pleasure  to  aid  my  young  fellow-townsmen  in 
acquiring  a  competence  of  this  world's  goods,  and  far 
more  to  aid  them  in  gaining  that  which  is  better 
than  riches  —  useful  and  practical  knowledge.  The 
man  who  has  the  ability  to  give  this  aid  in  any  the 
smallest  degree,  and  withholds  it,  is  criminal.  The 
aged  especially  owe  it  to  those  who  have  just  entered 
on  the  journey  of  life,  through  which  they  have 
nearly  passed,  to  fit  and  prepare  them  for  what  they 
may  be  called  to  do  or  to  suffer  ;  above  all,  to  point 
out  to  them  the  dangers  that  beset  their  path,  and 
show  them  the  road  to  usefulness,  both  as  it  regards 
themselves  and  their  country. 

"  It  is  not  a  narrow  sentiment  to  love  our   own 


370         »  LIFE     OF     JUDGE     SMITH. 

town,  our  neighbors  and  the  friends  that  surround 
us ;  to  wish  that  they  may  be  particularly  distin- 
guished and  spoken  of  with  applause.  To  do  good,  we 
must  confine  our  labors  to  a  circle  where  our  exer- 
tions will  be  felt ;  that  is,  to  a  small  one.  I  have  no 
particular  desire  that  our  houses  or  furniture,  our 
equipages,  our  dress,  should  be  finer  than  those  of 
others,  or  that  we  should  be  richer  than  they.  All 
this  is  mere  appearance  —  the  outside  of  things  ;  but 
to  see  our  townsmen  better  educated,  possessing  more 
knowledge,  better  fitted  to  act  well  their  several  parts 
in  life,  and  withal  possessing  better  manners,  more 
temperance  and  sobriety,  more  virtuous  habits  —  this 
is  a  consummation,  a  state  of  things  devoutly  to  be 
wished.  Life  is  surely  worth  more,  in  such  a  society, 
than  in  such  as  we  commonly  meet  with.  Who 
would  not  choose  to  live  and  die,  when  his  time 
comes,  in  the  midst  of  such  a  society  ? 

"  There  is  an  age  when  it  is  unseemly  to  go  to 
school,  but  there  is  no  period  of  life  when  it  is  un- 
seemly to  learn  ;  and  most  true  it  is,  that  after  all  that 
colleges  and  schools  can  do  for  us,  the  greatest  part 
of  the  work  of  education  must  be  done  by  ourselves, 
if  done  at  all.  We  finish  our  college  education  but 
to  begin  our  studies.  He  has  done  well  in  the  short 
period  of  academical  life,  who  has  acquired  a  taste 
for  letters,  and  a  capacity  to  acquire  knowledge. 

"  My  design  in  this  lecture  is  to  lay  before  you  a 
general  view  of  the  wide  field  to  be  entered  upon  and 
cultivated  by  you,  as  your  opportunities  may  allow,  or 
your  inclinations  prompt ;  and  suggest  some  consid- 
erations to  induce  you  immediately  and  in  earnest  to 


LIFE     OF     JUDGE     SMITH.  371 

set  about  the  cultivation  of  your  intellectual  powers, 
that  you  may  qualify  yourselves  to  be  useful  and  re- 
spectable members  of  society,  and  what  is  far  more, 
provide  for  yourselves  a  source  of  pleasure  and  hap- 
piness, while  engaged  in  the  active  business  of  life, 
and  when  that  is  over,  comfort,  solace  and  respecta- 
bility in  old  age." 

This  was  a  subject  in  which  Judge  Smith's  whole 
heart  was  engaged.  The  love  of  knowledge,  which 
had  dawned  like  the  star  of  his  destiny  on  his  early 
youth,  shed  its  benignant  light  on  his  declining  years, 
and  cheered  his  pathway  to  the  grave.  "  I  have  all 
my  life,"  he  said,  "  been  so  ignorant  as  not  to  know 
the  value  of  ignorance.  I  think  with  Goethe,  who 
once  said  with  a  smile,  '  I  have  always  found  it  good 
to  know  something.'  " 

"  I  am  afraid,"  he  continued  in  his  lecture,  "  that 
the  wide  field  I  have  opened  to  your  view  may,  in 
some  less  bold  minds,  serve  to  repress  and  intimidate, 
rather  than  excite  to  exertions.  They  see  so  much 
to  do,  so  great  and  arduous  labor  to  be  performed, 
that  they  are  ready  to  forego  all  the  rewards,  however 
great,  it  promises.  Many  a  traveller  faints  at  the 
view  of  the  towering  Alps  —  mountains  piled  on 
mountains ;  he  is  content  to  remain  all  his  life  in  the 
valley  below,  rather  than  attempt  the  difficult  ascent. 
I  would  not  conceal  from  you  the  difficulties  that  lie 
in  the  path  of  knowledge.  Indeed  I  am  acquainted 
with  no  good  thing  attainable  without  labor  and  toil. 
Man  was  made  to  labor,  and  I  sincerely  pity  him  who 
finds  nothing  to  do.  '  Dii  laboribus  omnia  vendunt.' 
The  gods  do  not  give,  but  sell  everything  to  industry. 


372  LIFE     OF     JUDGE     SMITH. 

But  at  the  same  time,  I  am  persuaded  there  are 
few  who  set  out  in  earnest  to  acquire  knowledge  or 
any  other  good  thing,  that  may  not  count  on  success. 
'  Seek  and  you  shall  surely  find,'  is  as  true  of  know- 
ledge as  of  the  pearl  of  infinitely  greater  value.  Be- 
sides, the  knowledge  I  recommend  to  you,  is  not  of 
the  abstruse  kind,  lying  at  the  bottom  of  a  well,  and 
to  be  fished  up  only  by  curious  machinery,  and  by  a 
few  favored  individuals.  Literature  is  a  republic, 
and  every  man  may  aim  at  the  highest  place.  The 
most  useful  knowledge  lies  near  the  surface  ;  and  that 
is  the  case,  (so  good  and  so  bountiful  is  heaven.)  with 
all  good  things  for  man  here  upon  the  earth.  We  all 
know  we  have  minds  as  well  as  bodies,  and  that  the 
mind  is  the  more  excellent  part,  and  susceptible  of 
the  purer  and  more  refined  enjoyments ;  why  then 
should  we  not  lay  up  a  stock  for  its  use  and  enjoy- 
ment, in  all  times  to  come  ?  You  may  rest  assured, 
my  friends,  that  the  heart  cannot  be  enlightened,  if 
the  understanding  is  left  in  darkness  ;  nor  the  intel- 
lectual part  be  healthy,  while  the  moral  nature  is  un- 
sound. 

"  But  some  are  ready  to  say,  '  I  am  not  blessed 
with  genius,  and  without  genius  it  is  impossible  to 
get  knowledge.'  I  have  had  occasion,  in  my  time, 
to  remark  innumerable  mistakes  on  this  very  subject. 
By  genius,  is  to  be  understood  that  peculiar  structure 
of  the  mind  inherited  from  nature,  which  possesses 
uncommon  strength,  particularly  in  the  faculty  called 
invention.  Many  suppose  the  man  of  genius  a  being 
sent  into  the  world,  ready  made  up,  for  everything 
great,  and  almost  superhuman.  He  acquires  know- 


LIFE     OF     JUDGE     SMITH.  313 

ledge,  pretty  much  as  the  possessor  of  Aladdin's  lamp 
acquired  riches,  a  splendid  palace,  and  a  fine  princess 
for  a  wife.  The  genii,  answering  to  our  genius, 
could  not  procure  him  the  princess  to  wife,  but  it 
brought  him  riches  and  the  fine  palace,  and  the  wife 
came  of  course.  He  had  only  to  rub  the  old  lamp, 
and  in  a  twinkling  all  he  desired  was  his ;  it  was 
brought  by  his  genii.  I  have  known  a  good  many  of 
these  great  geniuses  at  school  and  at  college.  They 
were  supposed  never  to  study,  or  studied  nobody 
knew  how  or  when.  They  struck  out  great  things 
at  a  single  heat.  Now  in  sober  truth  these  same 
geniuses  were  mostly  idle,  irregular  fellows.  They 
scorned  all  labor  and  all  restraint.  I  have  lived  to 
see  the  beginning,  the  middle  and  the  end  of  most  of 
them  that  started  in  life  when  I  did  ;  and  I  must  say 
that  the  young  men  of  no  genius,  in  college  language, 
that  is,  of  common  minds  and  industrious  habits,  gen- 
erally excelled  these  soi  disant  geniuses  in  scholar- 
ship, and  when  the  business  of  life  commenced,  and 
the  prizes  were  to  be  contended  for,  the  geniuses 
commonly  broke  down  early,  and  the  prizes  were 
won  by  a  different  class  of  men. 

"  I  do  not  deny  that  there  is  a  difference  in  the 
minds  of  men.  Some  acquire  knowledge  more  easily 
than  others.  I  have  myself  known  a  few  —  some  of 
them  intimately  —  not  exceeding,  perhaps,  seven  or 
eight  in  the  whole,  who  seemed  to  get  knowledge 
without  effort ;  pretty  much  as  Colburn  solved  his 
questions  in  arithmetic,  by  a  sort  of  intuition  —  a 
summary  mental  process.  But  we  err  in  calling  ec- 
centricity genius.  It  is  quite  a  different  thing.  Elo- 
32 


374  LIFE     OF     JUDGE     SMITH. 

quence  is  not  genius.  This  word  should  be  used  to 
characterize  only  the  highest  endowments  of  mind. 

"  Set  aside  a  few  real  geniuses,  and  a  small  num- 
ber to  whom  nature  seems  to  have  allotted  less  than 
their  fair  proportion  of  intellect,  and  all  between  may 
boldly  enter  on  the  career  of  knowledge,  and  contend 
for  the  prizes,  which  society  awards  to  the  successful 
competitors.  I  have  heard  the  idle  and  the  slothful, 
who  meanly  shrunk  from  the  contest,  ascribe  their 
failure  to  the  want  of  genius,  when  I  knew  it  owing 
to  the  want  of  exertion.  If  it  were  not  invidious,  I 
could  name  the  men.  I  have  no  hesitation,  there- 
fore, in  saying  that  the  literary  men  of  my  acquaint- 
ance are  indebted  for  their  fame  to  labor,  and  not 
genius.  Viewing  man  as  he  comes  into  the  world, 
with  faculties  susceptible  of  cultivation  —  as  the  clay 
in  the  hand  of  the  potter  —  it  is  not  so  much  genius 
which  has  made  one  man  to  honor  and  another  to 
dishonor,  as  culture,  and  that  is  but  another  name  for 
labor  and  exertion.  So  that  every  man  is  indebted 
chiefly  to  himself  for  his  knowledge  and  learning, 
whatever  they  may  be.  Generally  speaking,  they  are 
procured,  just  as  competence  or  wealth  is  procured, 
by  honest  industry  and  unremitting  labor.  The  zeal 
of  the  aspirant  urges  him  on  from  one  to  another, 
believing  nothing  done,  so  long  as  anything  remains 
to  do. 

"  Some  of  you  must  have  observed  young  men  in 
the  same  neighborhood,  nay,  in  the  bosom  of  the 
same  family,  one  called  a  genius,  and  another  scarcely 
above  the  point  of  mediocrity.  They  start  together 
in  the  race  of  life,  and  you  have  seen  the  genius  sink- 


LIFE    OF   JUDGE    SMITH.  375 

ing  in  the  scale  of  learning  as  well  as  character,  and 
the  mediocre  plodding  on  in  his  slow  but  sure  way  to 
the  temple  of  science,  and  at  last  reaching  the  emi- 
nence —  the  pride  of  his  family  and  friends,  and  no 
less  so  of  his  country.  I  am  confident  that  I  do  not 
go  too  far  in  affirming,  that  extraordinary  intellectual 
powers  as  often  prove  the  hindrance,  as  the  procuring 
cause  of  learning.  Short  steps,  take  enough  of  them, 
will  carry  you  safer  to  the  pinnacle,  than  long  strides 
from  which  there  is  always  danger  of  stumbling  and 
falling  to  the  bottom  of  the  ascent.  The  best  genius, 
after  all,  is  that  ardor  of  mind  which  prompts  to  ap- 
plication. Apply,  and  you  are  safe ;  remit  your  exer- 
tions, and  it  is  easy  to  see  the  end  thereof,  your 
genius  to  the  contrary  notwithstanding.  It  is  of  the 
nature  of  mind  as  well  as  body,  that  its  powers  should 
enlarge  and  improve  by  exercise,  and  grow  torpid  by 
sloth  and  inactivity. 

"  The  excuse,  then,  of  want  of  genius  or  capacity, 
generally  fails.  To  me  it  is  clear  that,  in  this  favored 
country,  all  who  have  common  powers  of  mind  with 
a  sound  body,  have  the  means  of  acquiring  a  compe- 
tent share  of  learning.  I  do  not  go  so  far  as  Sir 
William  Jones.  It  was  a  favorite  opinion  of  his,  that 
all  men  were  born  with  an  equal  capacity  for  improve- 
ment. Still  it  must  be  admitted  that  their  means  are 
not  equal.  Some  are  favored  with  leisure  for  intel- 
lectual pursuits  ;  with  books,  philosophical  apparatus, 
with  instructers  ;  while  others  are  obliged  to  toil  for 
their  daily  bread,  and  so  have  comparatively  little 
time  to  spare  for  the  cultivation  of  their  minds  —  are 
without  books,  and  without  instructers.  The  one 


376  LIFE     OF     JUDGE     SMITH. 

class  have  advantages  denied  to  the  other.  What 
then  ?  On  the  score  of  leisure,  have  not  the  most 
laborious  their  leisure  hours  ?  They  may  not  be 
spent  in  dissipated  company,  or  in  the  haunts  of  in- 
temperance ;  but  they  may  be  wasted  in  idle  com- 
pany, or,  what  is  not  much  better,  doing  nothing. 
Let  every  man  take  an  account  of  his  idle  hours,  and 
he  will  be  surprised  at  the  sum  total  —  at  twenty-one, 
years,  and  at  forty,  many  years.  There  is  no  period 
of  life,  when  the  cultivation  of  the  mind  should  cease 
to  be  an  object.  Whether  we  shall  enter  on  the 
next  state  of  existence  with  the  intellectual  cultiva- 
tion attained  in  this,  I  know  not ;  but  sure  I  am  that 
it  is  good  for  a  man  to  possess  an  improved  and  cul- 
tivated mind,  rich  in  moral  and  intellectual  stores,  all 
the  days  of  his  pilgrimage  here  upon  the  earth. 

"  But  books  and  instructors  in  sufficient  numbers 
are  wanting.  Then  make  the  better  use  of  a  few. 
I  am  very  sure,  from  careful  observation,  and  from 
some  experience  on  the  subject,  that  the  multitude 
of  books  does  not  of  itself  give  even  book  know- 
ledge, still  less  insure,  careful  reading,  and  make 
learned  men.  If  one  mind  be  in  danger  of  starving 
for  want  of  books,  another  is  in  danger  of  surfeit 
from  too  many.  I  have  not  forgotten  my  early 
days  ;  my  lot  was  cast  in  a  part  of  our  country, 
and  at  a  time,  when,  except  the  best  of  all  books,  a 
single  volume,  there  was  almost  literally  none.  I 
have  walked  miles  to  borrow  —  not  novels,  for  there 
were  none  —  but  a  volume  of  history  or  biography. 
The  long  walk  and  the  scanty  food  procured  only 
served  to  whet  my  appetite  the  more ;  so  that  before 


LIFE    OF    JUDGE    SMITH.  377 

I  had  reached  home  with  my  treasure,  valuable  for 
its  scarceness,  I  had  literally  devoured  the  greater 
part  of  its  contents. 

"  If  time  would  allow,  it  would  be  in  my  power  to 
show  how  others,  under  difficulties  such  as  neither  you 
nor  I  have  had  to  contend  with,  have  acquired  great 
learning  and  fame  —  have  given  to  themselves  an 
education  of  the  very  best  kind.  They  first  felt  in 
their  souls  a  thirst  for  knowledge,  an  ardent,  un- 
quenchable desire  to  acquire  it,  and  then  set  about 
the  work  in  earnest,  —  with  all  their  minds  and  all 
their  strength.  They  conquered,  though  opposed  by 
a  host  of  enemies  —  want  of  leisure,  want  of  in- 
structors, want  of  books,  want  of  money,  sometimes 
want  of  health  —  some  even  suffering  imprisonment 
—  some  engaged  in  uncongenial  and  distracting  oc- 
cupations ;  obliged  to  contend  against  the  force  of 
opposing  example,  the  discouragement  of  friends  and 
relations,  and  withal,  knowing,  as  regarded  some, 
that  the  better  part  of  life  was  spent  and  gone. 
These  unpropitious  circumstances  have  all,  separately 
or  in  various  combinations,  exerted  their  influence 
either  to  check  the  pursuit  of  knowledge,  or  prevent 
the  very  desire  of  it  from  springing  up ;  but  all  in 
vain.  In  many  cases  the  opposition  only  served  to 
carry  the  aspirant  still  higher  and  farther  in  the  de- 
lightful road. 

"  Perhaps,  indeed,  we  err  in  setting  some  of  these 
things  down  as  hindrances.  I  verily  believe,  from 
my  own  observation,  that  the  tendency  of  poverty, 
for  example,  to  crush,  is  a  far  less  hindrance  to  a 
strong  mind,  than  that  of  wealth,  ease,  powerful 
32* 


378  LIFE     OF     JUDGE      SMITH. 

friends,  &c.  to  corrupt.  What  is  got  through  diffi- 
culties overcome  and  obstacles  surmounted,  acquires, 
from  that,  very  circumstance,  a  new  and  enhanced 
value.  There  is  as  much  and  nearly  the  same  dan- 
ger, in  receiving  a  sugar-and-water  education,  as  in 
receiving  none  at  all  —  in  the  humors  which  follow 
from  being  under-worked,  over-fed,  and  from  false 
indulgences,  as  in  the  feverish  exhaustion  that  ac- 
companies over-work,  under-feeding,  and  neglect. 
Young  says,  '  Pride  was  not  made  for  man.'  We 
believe  leisure  and  indulgence,  as  little.  We  have 
all  seen,  even  in  this  country,  a  little  of  the  tendency 
of  hereditary  fortune  to  corrupt  and  to  damp  the 
ardor  of  mind  necessary  to  acquire  knowledge,  so 
that  we  are  prepared  for  the  saying  of  Lord  Kenyon 
to  a  rich  friend,  taking  his  opinion  of  the  probable 
success  of  his  son  at  the  bar,  —  <  Sir,  let  your  son 
forthwith  spend  his  fortune,  marry  and  spend  his 
.wife's,  and  then  he  may  be  expected  to  apply  with 
energy  to  his  profession.' 

"  I  had  intended  to  conclude  this  lecture  with  a 
few  biographical  sketches  of  self-educated  men  in 
Europe  and  in  our  own  country.  But  it  would  be 
cruel  to  task  your  patience  any  longer.  I  ought 
rather  to  thank  you  for  your  patient  attention,  and 
pray  you  to  pardon  my  over-earnestness  on  the  sub- 
ject, —  a  favorite  one  with  me,  —  the  diligent  em- 
ployment of  time,  —  not  in  amassing  wealth,  for  that 
is  our  besetting  sin,  but  in  the  cultivation  to  the 
utmost  of  our  intellectual  and  moral  powers.  These 
sentiments  and  feelings  I  have  long  cherished,  and 
instead  of  decreasing,  as  I  approach  the  goal  of  life, 


LIFE    OF    JUDGE    SMITH.  379 

they  grow  with  my  growth  in  years,  and  strengthen 
with  my  bodily  weakness  and  decay." 

In  the  same  lecture,  with  an  implied  -reference  all 
along  to  the  daughter,  whose  life  had  been  so  beauti- 
ful an  illustration  of  his  remarksj  he  said,  "  I  would 
express  my  most  ardent  desire,  one  I  have  long  felt, 
—  now,  alas  !  wholly  disinterested  —  that  the  style 
of  female  education,  in  the  books  they  read  and  the 
sciences  they  study,  should  be  somewhat  raised  and 
improved  —  made  a  little  more  scientific  and  intel- 
lectual than  it  now  is.  The  present  state  of  society, 
and  the  business  that  now  occupies  females,  give  the 
sex  more  time  at  their  disposal  than  formerly  ;  and 
he  must  be  less  conversant  with  women,  or  less  for- 
tunate in  his  acquaintance  than  I  have  been,  who 
can  for  a  moment  doubt  their  capacity  for  the  high- 
est degree  of  mental  culture  and  improvement.  I 
have  been  an.  instructor  of  youth  of  both  sexes,  and 
found  it  as  easy  and  assuredly  more  pleasant,  te 
convey  knowledge  to  female  pupils,  than  to  those  of 
my  own  sex.  And,  speaking  in  general  terms,  their 
advances  in  education  have  been  superior.  Though 
women  have  no  occasion  to  cultivate  the  sciences  for 
a  profession,  they  are  necessarily  the  companions  of 
professional  men,  and  the  sweeteners  of  their  toils. 
Now,  also,  I  speak  from  experience ;  and  it  is  not 
hazarding  much  to  say,  that  conversation  with  edu- 
cated men  requires  mental  cultivation.  .  .  .  What 
educated  man  would  not  desire  a  companion  for  his 
understanding,  one  who  could  appreciate  his  know- 
ledge, and,  what  is  more,  purify  and  refine  it  ?  Dr. 
Johnson  has  said  in  his  way,  '  It  is  a  miserable  thing 


380  LIFE    OF    JUDGE    SMITH. 

when  the  conversation  can  only  be,  whether  the 
mutton  should  be  boiled  or  roasted,  and  probably 
a  dispute  about  that.'  If  there  are,  however,  men 
who  would  prefer  an  uneducated  woman,  there  is  no 
reason  to  fear  that,  after  all  our  endeavors,  a  sufficient 
number  will  not  remain.  I  would  by  no  means  de- 
preciate accomplishments,  but  we  must  remember 
they  are  the  ornaments,  not  the  objects  of  life. 
There  should  be  something  solid  to  ornament.  Surely 
a  little  genuine  true  science  is  a  better  and  a  more 
enduring  good.  It  will  last  longer  than  taste  in 
dress,  singing,  dancing,  drawing,  or  playing  on  a  mu- 
sical instrument.  I  admit  accomplishments  add  grace 
to  the  beauty  and  vivacity  of  youth ;  but  when  the 
beauty,  and  vivacity,  and  youth  are  gone,  they  are 
not  quite  so  graceful,  and  they  are  at  all  times  of 
small  value,  according  to  the  domestic  estimate.  The 
charms  of  youth  should  be  succeeded  by  the  wisdom 
and  knowledge  of  age. 

"  Every  woman,  it  has  been  quaintly  said,  should 
either  look  well  or  talk  well.  One  of  the  most  agree- 
able fruits  of  knowledge,  is  the  respect  and  impor- 
tance it  imparts  to  age.  It  requires  an  effort  to  re- 
spect an  ignorant  old  man ;  and  the  case  of  an  igno- 
rant old  woman  is  not  much  better.  I  have  often 
heard  it  said  that  learning  tends  to  make  women  pe- 
dantic, affected,  and  fond  on  all  occasions  of  display. 
My  experience,  and  a  most  intimate  one,  is  quite  the 
other  way.  I  have  found  women  more  given  to  con- 
ceal than  to  display  their  knowledge.  This  charge  of 
pedantry  is,  I  believe,  often  made,  not  because  the 
accused  shows  too  much  learning,  but  because  the 


LIFE    OF    JUDGE    SMITH.  381 

accuser  is  conscious  he  himself  has  too  little.  After 
all,  it  is  the  very  superficial  education  which  is  the 
most  likely  to  be  ostentatious.  I  see  no  contradiction 
between  a  well-educated  female  mind,  and  true 
modesty,  gentleness,  and  propriety  of  manners  and 
conduct. 

"  We  sometimes  hear  it  said,  that  the  true  theatre 
for  a  woman  is  home  —  the  sick  chamber  —  and  that 
it  is  most  honorable  for  a  woman  not  to  be  spoken  of 
at  all.  A  good  nurse,  and  a  domestic  woman,  are  to 
be  sure  two  very  good  things ;  but  why  should  either 
be  the  worse,  accompanied  by  the  highest  mental 
cultivation  ?  I  doubt  whether  it  be  in  our  power  to 
prevent  women  being  talked  about.  The  evil,  if  there 
be  any,  must  be  in  what  the  talk  is.  I  think  Mrs. 
Barbaulda  Mrs.  Hamilton,  Miss  Hannah  More,  Miss 
Edgeworth,  Miss  Sedgwick,  and  many  whose  names 
will  readily  occur  to  you,  have  no  complaint  to  mako 
that  they  are  talked  of."  l 

Judge  Smith's  second  lecture  was  taken  up  mostly 
in  carrying  out  some  of  the  suggestions  contained  in 
the  first.  He  spoke  of  the  pleasures  of  knowledge, 
and  of  the  power  by  which  it  has  led  men  on  through 
discouragements  and  trials.  This  part  of  the  subject 
he  illustrated  after  the  manner  of  the  Library  of  En- 
tertaining Knowledge.  Among  those  whom  he  had 
personally  known,  he  mentioned  Noah  Worcester, 
"a  shoemaker  before  and  when  he  was  a  clergyman, 
and  who  attained  no  mean  distinction  ;  Roger  Sher- 


1  Some  of  these  suggestions,  it  will  be  seen,  are  taken  from  Sidney 
Smith.  •       .    .-'--•     ' 


382  LIFE     OF     JUDGE     SMITH. 

man,  another  shoemaker,  who  educated  himself, "and 
whom  it  was  a  great  treat  to  hear  converse  ;  Dr. 
Nathan  Smith,  who,  without  family,  connexions,  for- 
tune, patrons,  education,  raised  himself  by  his  own 
exertions  to  the  highest  rank  of  physicians  and  sur- 
geons in  our  country.  He  educated  in  a  short  life 
thousands.  Where  and  by  whom  was  he  educated  ?  l 
We  have  another  countryman,  a  native  of  Massachu- 
setts also,  who  deserves  to  be  mentioned  at  the  same 
time  with  Frankin ;  I  allude  to  Dr.  Nathaniel  Bow- 
ditch.  I  remember  the  boy  when  he  left  the  Salem 
town  school,  at  the  age  of  ten.  A  few  such  men 
would  ruin  our  high  schools  and  universities.  I 
might  name  William  Wirt,  who  has  attained  the 
highest  rank  in  the  profession  of  the  law,  among  the 
self-educated  men.  It  so  happened,  that  in  the  vari- 
ous scenes  of  my  life,  I  became  acquainted  with  his 
early  condition  in  the  world.  It  is  not  easy  to  say 
in  which  he  most  excelled  other  men,  in  goodness  or 
greatness.  His  knowledge  was  grafted  from  the  tree 
of  life,  and  all  its  fruits  were  good. 

"  It  must  be  admitted  that  knowledge  does  not 
always  make  its  possessor  virtuous  and  happy.  But 
the  tendency  of  intellectual  culture,  is  to  purify,  civil- 
ize and  elevate,  and  I  do  not  believe  many  instances 
can  be  found,  of  men  who  have  struggled  with  diffi- 


»  Judge  Smith,  although  not  related  to  Dr.  Smith,  was  thought  by 
many  to  resemble  him  in  his  personal  appearance,  and  was  sometimes 
mistaken  for  him.  Once  in  New  Haven,  a  gentleman  addressed  him  as 
Dr.  Smith.  "  Yes,"  he  replied,  "  I  am  Dr.  Smith,  and  a  very  clever 
man,  but  not  the  man  you  take  me  to  be."  Judge  Smith  had  received 
the  honorary  degree  of  LL.D.  from  Dartmouth  College  in  1804,  and 
from  Harvard  University  in  1807, 


LIFE     OF     JUDGE     SMITH.  383 

culties  in  acquiring  knowledge,  and  so  must  have 
acquired  habits  of  industry,  diligence,  self-govern- 
ment, self-denial  and  deep  meditation,  who  yet  have 
remained  bad  men.  How  can  he  possibly  continue 
a  slave  to  the  coarser  gratifications  of  sense,  who  has 
tasted  the  refined  pleasures  and  enjoyments  of  an 
enlightened  understanding  ?  A  clarified  mind  is  most 
likely  to  be  accompanied  by  a  pure  heart.  There 
may  be  distinguished  scholars  who  are  bad  men  ;  but 
we  know  not  how  much  worse  they  would  have  been, 
but  for  their  knowledge  and  love  of  knowledge.  I 
am  persuaded  knowledge  is  at  the  same  time  directly 
power,  and  indirectly  virtue,  and  generally  productive 
of  happiness.  Who  will  say  the  same  thing  of  riches, 
of  honors,  of  sensual  pleasures  ?  What  amusement 
is  so  innocent,  and  at  the  same  time  so  cheap  as  a 
book.  I  know  there  may  be  corrupting  books  ;  yet 
I  believe,  generally  speaking,  they  are  far  less  so  than 
dissipated  and  idle  companions.  Did  you  ever  know  of 
a  person  towards  the  close  of  life,  amid  all  his  regrets, 
grieve  at  the  time  devoted  to  useful  studies,  feel 
knowledge  a  drag  on  the  heaviness  of  old  age,  or  who 
would  exchange  it  for  anything  but  true  virtue  and 
the  pure  joy  of  heaven  ? " 

These  lectures  gave  pleasant  and  profitable  em- 
ployment to  many  otherwise  solitary  hours.  Early  in 
the  winter,  Judge  Smith  said  to  a  friend,  "  As  the 
winter  sets  in,  and  shuts  out  visiters,  I  am  obliged  to 
draw  on  such  resources  as  I  have  at  command.  My 
health  is  quite  good,  and  I  do  not  despair  of  a  reasona- 
ble share  of  enjoyments."  He  said  in  a  letter  written 
29th  January,  1831,  a  few  days  after  the  first  lecture 


384  LIFE     OF     JUDGE     SMITH. 

was  delivered,  "  I  have  been  very  busy  —  never  I 
believe  more  occupied  in  my  busy  life,  but  though 
occupied,  it  has  not  been  with  people  I  love,  or  those 
who  love  me.  How  delightful  it  would  have  been 
to  have  you  these  long  and  cold  evenings.  My  only 
pleasure  has  been  from  books. .  A  little  pleasant  chat 
is  a  fine  accompaniment  to  reading."  To  another 
friend,  he  said :  "  I  have  been  very  busy,  and  of 
course  happy  —  am  now  returned  to  reading,  and  of 
course  not  very  miserable.  What  a  dreadful  world 
would  this  be,  if  it  were  not  for  the  troubles  we 
have !  " 

From  a  letter  to  Miss  Elizabeth  Hale,  14th  March> 
1831.  "  Friday  evening  I  returned  to  Exeter,  to  my 
no  home.  Even  you,  my  dear  Elizabeth,  with  all 
your  imagination,  cannot  enter  into  my  feelings  on 
such  occasions.  Home  with  you  means  father,  mo- 
ther, brother,  sisters,  friends ;  but  in  my  vocabulary, 
it  means  only  a  house  —  there  is  no  association. 
'  Alas  !  nor  wife,  nor  children  more  shall  he  behold, 
nor  friends,  nor  sacred  home.'  I  must  not  complain 
of  the  dispensations  of  Providence,  and  I  do  not.  I 
have  a  reasonable  share  of  fortitude,  and  bear  the  ills 
that  flesh  is  heir  to,  as  well,  I  believe,  as  most  people  ; 
but  I  am  at  least  capable  of  receiving  happiness,  and 
want  some  earthly  object  to  engross  my  mind,  affec- 
tions and  attentions,  and  to  bestow  on  me  what  she 
can." 

To  Miss  Hale,  June  4,  1831.  "  I  am  not  solitary. 
A  favorite  nephew1  at  Franklin,  is  on  a  journey  of 

1  The  Hon.  Robert  Smith,  now  a  representative  in  congress  from  Illi- 
nois.   He  was  the  son  of  Judge  Smith's  brother  John. 


LIFE     OF     JUDGE     SMITH.  385 

two  months  to  the  westward,  and  has  deposited  his 
household  gods  with  me,  in  the  vacant  niche  on  my 
altar  —  his  wife — a  sensible,  well-educated,  lively 
and  affectionate  woman.  I  take  the  good  the  gods 
have  provided  for  me  most  thankfully.  I  must  show 
her  to  you,  and  you  must  love  her,  but  not  so  much 
as  I.  You  know  I  am  blessed  with  a  disposition  to 
enjoy  the  good  without  repining,  because  it  is  not  so 
permanent  as  I  could  desire." 

The  summer  was  spent  not  unhappily,  and  the  au- 
tumn put  an  end  to  his  solitary  condition.  On  the 
20th  September,  1831,  he  was  married  to  Elizabeth, 
daughter  of  the  Hon.  William  Hale,  of  Dover,  New 
Hampshire.  We  trust  it  will  be  long  before  it  is  pro- 
per to  speak  of  her  with  the  same  freedom  with  which 
we  have  spoken  of  all  who,  a  few  years  before,  had 
belonged  to  Judge  Smith's  household.  Through  her 
influence,  his  home  once  more  resumed  its  former 
cheerfulness,  and  the  eleven  years  that  remained  were 
among  the  happiest,  if  not  the  most  useful  of  her 
husband's  life.  He  seemed  to  have  recovered  what 
he  had  lost  in  his  daughter  and  wife,  and  the  mild 
influence  of  their  memory  was  not  less  dear,  nor  less 
fondly  cherished,  because  associated  with  her  who 
had  now  succeeded  to  their  place. 

The  feelings  with  which  Judge  Smith  entered  on 
this  new  relation,  may  be  inferred  from  the  prayer 
which  he  wrote  at  the  time :  "  O  Lord,  we  thy  ser- 
vants have  now  entered  into  a  new  relation  to  each 
other,  the  holy  estate  of  matrimony.  We  humbly  im- 
plore thy  blessing  upon  us,  that  we  may  faithfully 
perform  the  vow  and  covenant  betwixt  us,  and  may 
33 


386  LIFE    OF   JUDGE    SMITH. 

forever  remain,  as  long  as  we  live,  in.  perfect  love 
and  peace  together,  always  living  according  to  thy 
holy  law.  Teach  us,  by  thy  good  spirit,  to  bear  with 
each  other's  infirmities,  to  love  each  other  with  a 
pure,  fervent,  and  sincere  affection,  next  in  degree  to 
that  we  owe  thee.  Grant  us,  if  it  please  thee, 
health  of  body  and  soundness  of  mind,  and  enable 
us  to  promote  the  joy  and  to  alleviate  the  sorrows  of 
each  other ;  to  love  our  parents,  relatives  and  friends, 
with  increased  affection  ;  and  finally  grant,  O  Holy 
Father,  that  this  new  and  most  intimate  connexion, 
by  thy  special  blessing,  may  minister  abundantly  to 
our  comfort  and  happiness  here  on  earth,  and  above 
all,  serve  the  better  to  prepare  us  for  a  happy  immor- 
tality in  thy  kingdom  above.  Through  Jesus  Christ, 
our  Lord."  * 

To  Mrs.  Walker,  September  22,  1831.  "  I  be- 
lieve I  have  now  a  good  companion  for  the  short 
remains  of  my  mortal  life.  She  is  too  young  and 
too  good ;  but  she  will  be  likely  to  grow  older,  and 
probably  in  such  company  worse  ;  but,  as  I  shall 
grow  better  in  her  society,  we  shall  approach  nearer 


1  A  note  to  the  town  clerk,  September  2,  is  characteristic.  "  I  am 
about  to  marry,  and  want  your  aid  in  some  of  the  preliminaries. 
The  lady  would  be  glad  not  to  be  tormented  before  the  time,  and  there- 
fore wishes  the  publishment  as  private  as  possible,  so  that  the  gossips 
may  do  their  wondering  and  gossiping  all.  at  once.  Let  me  beg  the 
favor  of  you  to  keep  this  entirely  to  yourself  till  the  20th  of  September, 
and  I  will  reward  your  silence  ;  give  me  publishment,  and  1  will  see 
that  it  be  managed  "according  to  law."  To  Miss  Hale,  about  the  same 
time  :  "  I  am  not  aware  that  the  public  know  anything,  as  yet,  of  our 
plan.  Let  them  remain  in  ignorance  till  the  20th.  Then  I  promise  them 
a  holiday.  I  think  they  will  suspend  all  other  business,  and  lend  them- 
selves entirely  to  us.  How  flattering ! " 


LIFE    OF    JUDGE    SMITH.  387 

to  each  other,  and  thus  the  inequality  the  world 
complains  of  in  the  match  will  gradually  diminish  ; 
and  I  sincerely  hope,  at  some  distant  day,  she  will 
follow  me  to  heaven.  There  is  nothing  to  be  said, 
after  this,  but  that  I  should,  at  the  same  distant  day, 
be  glad  to  see  you  there,  and  in  the  meantime,  sin- 
cerely wish  you  all  manner  of  felicity.  We  —  I  am 
glad  that  I  can  now  say  we  —  shall  be  glad  to  see 
you  at  our  home  —  I  hope  I  have  now  a  home  — 
and  your  good  husband,  as  soon  as  your  convenience 
will  admit.  I  must  depend  on  your  breaking  this 
matter  to  sister  Morison  and  family,  in  the  most  dis- 
creet way.  To  the  rest  of  our  friends  you  need  use 
less  caution.  You  may  say,  I  could  no  longer  have 
supported  the  solitary  and  desolate  situation  in  which 
Providence  had  placed  me,  especially  after  a  door  of 
escape  had  been  opened." 

To  Mrs.  Sarah  P.  B.  Smith,  of  Illinois,  he  said : 
"  I  am  no  longer  the  desolate,  solitary,  dull,  old  stu- 
pid uncle  you  parted  with  a  few  weeks  ago ;  but  a 
young,  sprightly,  married  man,  just  entering  on  the 
active  scenes  of  life."  "  Of  all  men,  I  was  the  last 
made  to  be  alone.  My  heart,  the  best  part  of  me, 
is  still  young.  It  always  has,  and  I  am  pretty  sure 
always  will,  love  female  excellence  of  every  kind." 

From  this  time  there  were  few  incidents  in  Judge 
Smith's  history.  The  current  of  his  life  was  smooth, 
and  with  no  striking  variations  in  its  course.  It  was 
not  like  the  African  stream,  which  is  lost  in  the  wil- 
derness ;  but  as  it  went  on,  it  was  imperceptibly 
enlarged,  growing  deep  and  broad  and  calm,  reflect- 
ing the  still  over-arching  heavens,  from  which  its 


388  LIFE    OF    JUDGE    SMITH. 

waters  had  come,  and  the  little  flowers  which,  on  its 
borders,  were  drawing  from  it  their  daily  food.  His 
life,  not  divorced  from  the  stern  virtues  which  had 
marked  his  character,  and  which  still  knew  how  to 
make  themselves  felt,  was  made  up  mostly  of  those 
silent  charities,  the  retired  thoughts  and  affections, 
which  flow  out  so  gracefully  in  the  daily  intercourse 
of  home,  in  looks  and  tones  which  cannot  be  trans- 
cribed, in  words  which,  when  preserved,  like  the 
last  year's  flowers,  give  but  a  poor  idea  of  what  they 
were,  and  in  acts  which  might  seem  too  trifling  to  be 
detailed,  or  which  lose  their  charm  when  brought  out 
from  the  privacy  in  which  and  to  which  they  were 
born.  None  but  those  who  had  the  privilege  of 
spending  some  time  in  his  family,  could  fairly  under- 
stand his  character  ;  and  it  was  curious  to  see  how 
the  feelings  of  these,  especially  the  young  who  were 
thus  brought  in  contact  with  him,  were  sometimes 
changed.  He  whom  they  had  been  accustomed  to 
think  of  as  a  severe  judge  and  censor,  delighting  to 
make  the  peculiarities  of  others  the  objects  of  his 
keen  and  merciless  satire,  proved,  to  their  great  sur- 
prise, to  be  a  man  of  real  tenderness,  one  to  whom 
they  could  go  in  the  utmost  confidence,  sure  that  all 
proper  allowance  would  be  made  for  them,  and  that 
if  their  general  purposes  were  right,  their  little  fol- 
lies and  excesses  would  be  treated  with  every  indul- 
gence. I  have  never  known  a  man  to  whom  I 
should  be  less  willing  to  propose  anything  dishonor- 
able or  unjust,  however  it  might  seem  to  be  for  his 
advantage  ;  but  if  overtaken  by  even  a  serious  fault, 
there  was  no  one  whose  confidence  I  should  be  more 


\ 


LIFE    OF    JUDGE    SMITH.  389 

ready  to  seek,  or  by  whom  I  should  be  more  sure  of 
being  kindly  received.  There  was  nothing  of  that 
supercilious  condescension,  with  which  good  men 
sometimes  view  the  errors  of  the  weak,  and  which,  to 
a  quick  and  sensitive  mind,  is  more  painful  and  re- 
pulsive than  any  severity ;  since  in  its  assumption  of 
rectitude  it  is  certainly  mingled  with  pride,  and  pro- 
bably covered  over  with  hypocrisy.  He  sometimes, 
indeed,  made  himself  and  his  friends  merry  at  the 
expense  of  the  world  ;  but  he  had  nothing  of  the 
moroseness  of  age,  of  disappointed  ambition,  or  a 
Pharisaical  virtue.  The  sportive  humors  of  a  child 
could  not  be  more  free  from  bitterness  than  his  wit. 
His  nearest  friends  were  most  likely  to  be  its  objects, 
especially  those  who  were  able  to  defend  themselves. 
For  instance  :  His  wife  said  reproachfully  to  him,  as 
the  horse  was  drawing  them  up.  a  steep  hill,  "  My 
father  always  walks  up  all  the  hills."  "  So  did  my 

first  wife/'  was  the  reply.    "There,"  said  Mrs. , 

giving  him  some  trifle,  "  that  is  in  return  for  your 
abuse."  "  Yes,"  said  he,  "  you  are  like  the  sandal 
tree,  that  sheds  its  sweetness  on  the  axe  that  cuts  it 
down."  ".Then  you  intend  to  kill,  me,  do  you? 
When  do  you  mean  to  do  it  ?"  "  Not  till  you.  are 
good  ;  I  think  you  can't  have  better  security  for  your 
life." 

[A  few  of  his  humorous  sayings  are  here  inserted  ; 
but  when  read  in  a  book  they  give  no  just  idea  of  his 
wit.] 

"Don't  you  see  I  am  acting  the  pig  —  gnawing 
the  cob  from  which  you  have  been  cutting  the  corn." 
J.  S.  "  You  are  very  much  at  home  in  the  character, 
certainly." 

33* 


390  LIFE    OF    JUDGE    SMITH. 

"He  is  reserved,  cunning  —  like  an  old,  empty 
trunk  locked  up.  What  is  the  use  of  locking  it, 
when  there  is  nothing  in  it  ?  " 

"  I  saw  '  for  sale  '  written  on  his  forehead,  the  mo- 
ment I  set  my  eyes  on  him."  Being  at  another  time 
asked  about  this  same  man,  Judge  Smith  replied, 
in  shrill  and  humorous  tones  :  "  If  there  is  an  honest 
man  in  the  world,  it  is  he."  Another  distinguished 
man,  who  had  read  law  in  Judge  Smith's  office,  be- 
ing accused  in  the  public  papers  of  having  betrayed 
his  confidence,  by  making  improper  use  of  secrets, 
which  he  had  got  from  him  while  a  student  ;  the 
judge  laughingly  said,  "  That  cannot  be  true,  for  I 
never  had  any  secrets  for  any  one,  and  certainly  no 
confidence  for  him  to  betray." 

"  Mr.  P.  has  too  much  the  spirit  of  self-vindica- 
tion. He  keeps  alive  what  would  soon  die  of  itself, 
and  magnifies  the  lies  of  his  enemies." 

" have  acted  like  the  devil, 

i.  e.  like  themselves  ;  but  they  shall  not  rob  me  of 
my  enjoyments  ;  I  will  be  happy  in  spite  of  them." 

"  On  that  night  could  not  the  king  sleep,  who 
commanded  to  bring  the  book  of  the  records  of  the 
Chronicles,  and  they  were  read  before  the  king." 
"  Judicious  enough.  The  journals  of  our  legisla- 
tures, reports  of  committees,  and  speeches  of  the 

members,  would  be  still  better  opiates."  " 

has  common  sense  and  a  disposition  to  chi- 
merical scenes ;  the  former  lies  dormant,  the  latter 
is  in  full  operation."  "  When  I  find  a  woman  sillier 
than  the  fashion,  I  pity  her,  and  can't  help  feeling  a 
little  contempt  for  her."  "  Drive  away  folly,  but 


LIFE    OF    JUDGE    SMITH.  391 

not  merely  one  kind  to  let  in  another."  "  '  Asmo- 
deus  was  seated  by  my  side,  reading  a  Sunday  news- 
paper, his  favorite  reading.'  Strange  employment 
for  a  devil." 

"  Is  it  true  that  lawyers  seldom  make  wills  of  their 
own  ?  If  the  fact  be  so,  does  it  not  arise  from  the 
many  foolish  wills  of  others  their  practice  makes 
them  acquainted  with  ?  "  Judge  Smith  once  refused 
to  draw  up  a  foolish  will.  "  What !  "  said  the  man, 
with  surprise,  "  have  n't  I  a  right  to  make  such  a 
will  as  I  please  ? "  "  Perhaps  you  have  ;  but  I  have 
a  right  to  decline  being  the  instrument  of  your  folly." 
He  always  spoke  with  commendation  of  that  clause 
in  Governeur  Morris's  will,  in  which,  after  naming  a 
certain  sum  for  his  wife,  so  long  as  she  remained  his 
widow,  it  adds,  "  and  six  hundred  dollars  more  per 
annum  if  she  should  marry  again." 

"  Have  you  got  the  rheumatism,  my  dear  ?  It 
seems  to  me  you  stoop  more  than  common."  "  Oh  no, 
that 's  my  modesty  ;  it  is  only  my  modesty  that  makes 
me  stoop,  —  though  I  confess  it  took  a  different  turn 
in  Washington.  He  was  erect." 

Judge  Smith,  used  to  tell,  in  a  very  amusing  way, 
a  story  to  illustrate  the  folly  of  an  author's  giving 
away  his  works.  "  Judge  Thornton  received  from 
his  minister  a  copy  of  a  sermon  that  he  had  just 
published.  In  a  few  days  the  minister  called,  and 
asked  if  he  had  read  it.  « Yes.'  Lie  No.  1.  <  How 
did  you  like  it  ? '  <  Very  much,  indeed.'  Lie  No.  2. 
'  But,'  taking  up  the  pamphlet,  '  the  leaves  are  not 
cut.'  'Ah — Oh  —  I — .1  borrowed  it  before  you 
sent  this.'  Lie  No.  3. 


392  LITE    Or   JUDGE    SMITH. 

"  May  5,  1833."  (I  use  Mrs.  Smith's  words.)  "  The 
seringas,  after  a  long  delay,  began  to  display  their 
white  blossoms.  Judge  Smith  announced  it,  by  say- 
ing '  last  night  the  seringas  had  a  meeting ;  the 
seventh  vice  president  in  the  chair ;  only  five  secre- 
taries were  present,  which  made  them  fear  how  they 
should  get  on  ;  but  at  length  one  put  the  question, 
whether  they  should  delay  blooming  a  little  longer, 
or  come  out  the  next  morning ;  the  latter  proposition 
was  finally  carried  by  an  overwhelming  majority.' 
This  was  justly  ridiculing  the  unnecessary  multiplica- 
tion of  officers  and  forms,  now  so  common.  Per- 
haps there  was  no  morning  in  which  the  breakfast 
table  was  not  enlivened  by  some  such  jeu  d'  esprit, 
and  often  far  better.  Alas  !  that  there  is  no  way  to 
catch  and  make  tangible  the  aroma  of  such  wit. 
Breakfast  was  his  favorite  meal ;  he  liked  it  long, 
and  good  and  social ;  he  would  like  to  have  emulated 
Lord  George  Germaine  in  punctuality  —  his  lordship 
always  entering  his  dining-room  while  the  clock  was 
striking  the  dinner  hour  —  but  bore  with  his  wonted 
good  humor,  either  the  too  much  haste  or  too  much 
delay  of  the  operatives.  When  I  say  that  he  liked 
his  breakfast  good,  I  do  not  mean  that  he  touched 
the  verge  of  what  he  loathed,  an  epicure  ;  but  that 
he  had  not  that  stupid  indifference  which  is  discour- 
aging to  good  housekeepers." 

E.  H.  S.  "  It  may  be  truly  said  of  you,  when  you 

are  carried  to  your  long  home,  that  you  have  raised 

more  laughs  than  any  body  within  fifty  miles  of  you." 

J.  S.  "  Why  yes,   dear,  what    you   say   is   very 

true,  for  those  who  could  not  laugh  with  me  could 


LIFE    OF   JUDGE    SMITH.  393 

laugh  at  me,  so  I  've  been  very  fortunate."  This 
badinage  was  not  without  a  mixture  of  truth  ;  for 
Judge  Smith  used  to  intimate,  that  in  laughing  at 
others  he  broke  no  Scripture  rule  ;  he  only  did  as  he 
was  perfectly  willing  to  be  done  by.  Indeed  this  de- 
light in  the  ridiculous  was  a  family  trait,  and  never 
seemed  to  give  offence  ;  brothers  and  sisters,  uncles, 
aunts  and  cousins,  were  sure  to  have  every  little  pe- 
culiarity ridiculed,  and  placed  in  the  most  exagger- 
ated point  of  view.  They  thought  themselves  de- 
scended exclusively  from  the  Scotch,  but  one  cannot 
help  suspecting,  that  they  must  either  have  gained 
some  pure  Irish  blood,  by  some  remote  intermarriage, 
or  else  that  the  very  air  of  the  Green  Isle  had  in- 
fected them  with  its  characteristic  love  of  fun.  One 
might  go  farther  and  say,  that  it  was  not  only  a 
family  trait,  but  that  it  pervaded  the  first  settlers  of 
his  native  town.  Judge  Smith,  speaking  of  their 
decidedly  religious  character,  said  that  they  went  to 
church  on  Sunday,  practised  all  that  was  good  in  the 
sermon  through  the  week,  and  laughed  at  all  that 
was  ridiculous  in  it  ;  and  verily  we  can  find  some 
excuse  for  them,  when  we  hear  quoted  such  a  prayer 

as  that  of  the  Rev.  Mr. :  "  Shake  this  people 

over  the  pit  of  hell,  but  do  not,  O  Lord,  let  them  fall 
into  it." 

That  Judge  Smith  related  an  anecdote  showing  off 
some  weakness  of  his  own,  as  freely  as  that  of  an- 
other, is  illustrated  in  the  account  which  he  delighted 
to  give  of  his  interview  with  R ,  the  tory  book- 
seller, at  Philadelphia.  Always  in  pursuit  of  books, 
he  called  at  Mr.  R.'s  bookstore,  and  on  his  inquiring 


394  LIFE     OT     JUDGE     SMITH. 

for  some  rare  book,  "  Sir,"  said  Mr.  R.,  "  I  perceive 
that  you  are  a  man  of  letters."  Valuable  books  were 
produced,  offers  of  procuring  others  from  his  brothers 
in  England  were  made,  and  the  young  member  of 
congress  doubtless  drawn  in  to  buy  more  books,  and 
give  larger  prices  than  he  had  intended.  He  told 
this  to  his  travelling  companion,  Mr.  Ellsworth,  as  he 
was  returning  to  the  north.  Mr.  Ellsworth  stated 
that  exactly  the  same  compliment  had  been  addressed 
to  him  by  Mr.  R.  on  his  making  a  similar  inquiry  ; 
but  that  the  words,  "  Sir,  I  perceive  you  are  a  man 
of  letters,"  did  not  make  him  alter  his  plans,  nor  en- 
tice him  to  buy  a  single  book,  that  he  had  not  pre- 
viously intended  to  buy. 

Judge  Smith  had  sometimes  the  mortification,  or 
what  to  others  would  have  been  the  mortification,  for 
he  cared  nothing  about  it,  of  having  what  he  had  said 
as  nonsense  and  meant  for  such,  reported  as  wit. 

Something  of  his  characteristics,  his  modes  of  think- 
ing, and  his  quiet,  but  not  inactive  life,  may  be 
learned  from  his  private  letters.  If  they  relate  to 
small  things,  let  it  be  remembered  that  these  small 
things,  in  the  unguarded  moments  of  domestic  retire- 
ment, are  what  indicate  the  true  character.  "  I  feel," 
he  said  some  months  after  his  marriage,  "  as  if  the 
old  state  of  things  had  returned,  and  the  ills  that  flesh 
(old  flesh  especially)  is  heir  to,  had  been  so  obliging 
as  to  keep  away  for  a  season." 

To  Mrs.  Smith,  22d  December,  1832.  "Your 
room  is  comfortable,  and  your  husband  as  happy  as 
he  can  be  without  you  ;  but  I  am  Swedenborgian 
enough  to  believe  you  are  by  my  side,  and  strange  to 


LIFE     OF     JUDGE     SMITH.  395 

say,  I  have  no  desire  to  talk  nonsense  to  such  a  pre- 
sence. In  all  senses,  real  and  spectral,  I  am  your 
most  affectionate  husband." 

To  Mrs.  Walker,  12th  March,  1832.  "Your  old 
acquaintance  and  friend,  Mrs.  F.  will  hot  be  long 
with  us.  I  fear  she  will  not  see  June,  a  fatal  month 
for  our  house.  She  is  in  an  excellent  frame  of  mind, 
perfectly  resigned.  All  her  children,  especially  A., 
have  been  with  us  through  the  winter." 

To  Mrs.  Walker,  30th  March,  1832.  "  Your  and 
our  friend,  Mrs.  Furbur,  left  us  for  a  better  world 
Tuesday  evening,  and  was  buried  yesterday.  She 
suffered  considerably  for  some  days,  but  the  state  of 
her  mind  was  delightful,  her  patience  held  out  to  the 
end.  Whatever  of  intellect  and  heart  she  possessed, 
seemed  in  exercise  without  any  display  ;  she  was,  as 
we  trust,  fully  prepared,  perfectly  resigned,  and  has 
made  a  blessed  exchange  of  worlds.  We  left  nothing 
undone,  to  smooth  her  dying  pillow.  Her  father  (a 
very  good  man)  and  mother  happened  to  come  on 
Sunday.  Eleven  of  the  family,  including  her  four 
children,  were  with  us  at  the  funeral.  And  a  Free- 
will Baptist  preacher,  (her  denomination,)  preached  a 
very  good  funeral  sermon,  from  the  text,  '  A  good 
name  is  better  than  precious  ointment,  and  the  day 
of  death  than  the  day  of  one's  birth.'  She  has  in- 
deed left  behind  a  reputation  which  might  be  envied 
by  many  of  superior  ability  ;  she  seemed  to  me  anx- 
ious to  follow  the  example  in  dying  as  in  living,  of 
our  dear  departed  friends.  She  could  hardly  have 
chosen  better  models." 

The  "  old  acquaintance  and  friend  "  here  spoken 


396  LIFE     OF     JUDGE     SMITH. 

of  with  so  much  feeling,  had  been  several  years  a 
cook  in  the  family,  and  had  endeared  herself  by  her 
gentleness  and  fidelity  at  all  times,  but  more  espe- 
cially in  times  of  sickness.  She  left  a  son,  Joel  Fur- 
bur,  about  ten  years  old,  whom  Judge  Smith  kept 
with  him  out  of  regard  to  his  mother.  He  was  an 
unpromising  child,  and  for  some  time  it  was  doubtful 
how  he  would  turn  out.  As  soon  as  he  was  far  enough 
advanced  in  his  studies  to  join  the  academy,  the  judge 
took  him  in,  as  one  of  his  own  family,  defraying  all 
his  expenses,  and  offering,  when  the  time  came,  to 
give  him  a  college  education.  This  he  declined,  and 
after  remaining  in  the  academy  three  or  four  years, 
he  decided  to  go  to  seek  his  fortune  in  the  west. 
Judge  Smith  provided  him  with  funds,  and  with  let- 
ters bespeaking  for  the  young  man  the  good  services 
of  his  friends  in  St.  Louis,  and  as  he  was  leaving 
home,  (October  10,  1840,)  put  into  his  hands  a  pa- 
per, suggesting  the  principles  by  which  his  life  should 
be  guided.  This  departure  of  one  who  had  come 
under  his  roof  a  little  child,  who  had  so  long  been  the 
creature  of  his  kindness,  and  who  was  now  going  out 
into  the  wide  world,  without  established  principles,  ex- 
perience or  friends,  was  an  event  that  touched  his  feel- 
ings, and  gave  rise  to  much  thought  and  conversation 
as  to  the  probable  success  of  the  experiment.  Joel  en- 
gaged first  in  a  dry  goods  store,  then  as  a  teacher  in  a 
school,  and  then,  under  the  influence  of  strong  reli- 
gious convictions,  began  the  study  of  divinity,  with 
the  Rev.  W.  G.  Eliot.  His  character  was  blame- 
less ;  he  secured  the  confidence  of  those  who  knew 
him,  and  was  treated  with  great  kindness  by  the 


LIFE     OF     JUDGE     SMITH.  397 

friends,1  to  whom  Judge  Smith  had  commended  him. 
In  1842,  his  health  failed  ;  he  set  out  for  New  Eng- 
land, hoping  once  more  to  see  his  early  benefactors  ; 
but  at  the  end  of  the  first  day's  journey,  after  leav- 
ing Pittsburgh  for  the  east,  he  was  put  on  shore  from 
the  canal-boat,  as  too  feeble  to  go  farther,  and  there 
died,  so  entirely  among  strangers,  that  it  was  only  by 
Judge  Smith's  parting  letter,  which  was  found  upon 
him,  that  his  friends  and  the  place  of  his  residence 
were  known. 

To  Mrs.  Walker,  May  31,  1833.  "My  dear  Sa- 
rah :  J.  H.  M.  gave  us  the  first  information  of  the 
death  of  your  mother,  and  the  probable  death  of  sis- 
ter Morison.  Though  he  came  away  on  Wednesday, 
he  had  not  heard  of  the  event.  I  can  sincerely  sym- 
pathize with  you  on  these  dispensations  of  Provi- 
dence. Both  were  good  women,  and  leave  those 
behind  them  who  will  long  cherish  the  remembrance 
of  their  worth.  I  am  not  ignorant  of  the  sweetness 
of  such  recollections ;  they  soon  cease  to  be  at  all 
painful.  Our  departed  friends  are  now  happily  se- 
cure from  the  pains  and  afflictions  incident  to  life, 
and  safe  in  that  rest  which  remaineth  for  the  virtuous 
and  the  good.  You  cannot  fail  to  have  pleasure  in 
reflecting  on  the  many  kind  acts  you  have  done  to 
your  mother  and  aunt.  I  have  always  been  wanting 
in  such  good  deeds.  In  this  account,  I  fear  the  balance 
is  sadly  against  me.  It  is  impossible  not  to  feel  for  the 
loneliness  of  the  husbands.  You  must,  I  think,  take 


1  Particularly  by  Judge  Smith's  nephew  and  niece,  Mr.  and  Mrs. 
Cavender. 

34 


398  LIFE     OF     JUDGE     SMITH. 

your  father.     S.  M excels  Job  and  Moses  in 

patience  and  meekness,  and  as  his  daughters  seem 
happy,  and  no  doubt  are  so,  he  will  get  well  through 
the  remainder  of  life." 

To  Mrs.  Smith,  Exeter,  September  17,  1833. 
"  Should  you  believe  it,  my  dear  Elizabeth,  the 
house  is,  and  has  been  still  —  no  noise,  or  loud  talk 
—  all  quiet  ;  this  must  be,  because  I  do  not  talk 
when  you  are  absent,  or  there  is  a  reformation  in  the 
kitchen.  But  then  we  are  exceedingly  dull,  and  all 
longing  for  your  return  to  enliven  us.  I  fancy  we 

are  rather  idle.    Apropos  of  indolence,  Mr. ,  and 

of  industry,  Mrs. ,  with   their  son,  called  after 

dinner  yesterday ;  it  was  about  half  after  two,  and  I 
neglected  to  ask  them  to  dine.  I  verily  believe  they 
had  not  —  I  now  recollect  they  looked  hungry.  I 
invited  them  to  stay  all  night,  but  they  were  bound 

for  Portsmouth.     Judge ,  with  his  son,  also  gave 

me  a  call,  and  spent  half  an  hour,  whereupon  I 
praised  his  wife,  which  seemed  to  make  him  a  little 
jealous.  If  you  do  not  return  soon,  I  shall  be  over- 
run with  women.  Two  other  women  honored  me 
with  a  call,  under  pretence  of  seeing  you.  I  shall 

soon  be  as  vain  as .     If  you  do  not  come  soon, 

I  shall  lose  the  gift  of  speech  altogether.  It  was  re- 
marked last  night,  at  the  bank,  that  I  was  quite 
silent.  Do  you  spend  your  time  pleasantly  ?  Are 
you  useful  to  your  mother,  and  adding  to  your  own 
health  and  strength?  Then  stay,  and  let  us  get 
along  as  we  can.  Your  health  is  of  more  import- 
ance than  all  we.  You  see  by  my  'speaking  of  wo- 
men, and  not  ladies,  that  I  am  retrograding,  and 


LIFE    OF     JUDGE     SMITH.  399 

losing  what  I  could  ill  spare.  The  shadow  of  the 
degrees  on  my  dial  of  life,  is  gone  backward  two 
years ;  and  I  am  as  when  you  had  compassion  on 
me,  and  pitied  my  loneliness,  and  comforted  me. 
But  still  I  say,  do  not  come  if  you  are  gaining  health. 
I  will  forego  present  for  future  good,  and  especially 
your  good.  I  have  read  Jay  through,  with  increased 
delight.  I  would  recommend  it  to  your  father.  I 
am  now  in  Piickler,  and  he  grows  dull,  at  least  so  it 
seems.  I  doubt  whether  he  is  trustworthy,  which  is 
no  small  objection  to  travels.  I  have  also  been  look- 
ing over  my  business  concerns,  bringing  up  lee-way  ; 
so  you  see  your  absence,  though  grievous,  produces 
some  good  fruits.  But  I  would  not  be  too  rich  in 
good  things  in  which  you  are  not  ;  therefore  when 
you  can,  without  leaving  any  duty  undone,  come  to 
your  own  husband —  thank  heaven." 

To  Mrs.  Smith,  December  7,  1833.  "  It  is  my 
duty  to  love  and  care  for  you,  and  think  of  you  all 
the  time,  and  to  dream  of  you  when  asleep.  All 
these  things  I  have  done,  and  I  hope  you  will  only 
think  of  me  and  home,  in  the  intervals  between  the 
pleasures  and  enjoyments  your  visit  must  afford  you. 
But  I  have  not  been  miserable,  the  house  is  exceed- 
ingly quiet.  If  you  do  not  return  soon,  I  fear  we 
shall  all  lose  the  gift  of  tongues.  Eliza  is  all  soft- 
ness, and  Jane  as  still  as  a  mouse.  If  you  come 
soon,  you  will  have  all  the  talk  —  can  I  state  a 
stronger  motive  ?  I  have  almost  finished  Peck's 
trial,  and  am  delighted,  not  with  the  managers,  but 
with  Meredith,  a  Philadelphia  lawyer,  and  above  all, 
with  Wirt,  who  is  truly  clever  and  eloquent  ;  you  do 


400  LIFE  or  JUDGE  SMITH. 

not  envy  me  this  pleasure.  It  is  only  the  gleanings 
of  the  field,  after  harvest.  But  now  I  recollect 
you  enjoined  the  reading  on  me.  I  should  have  had 
much  pleasure  in  reading  many  passages  to  you.  I 
have  invited  your  usual  company  for  tea  this  evening. 
The  guests  will,  I  am  sure,  miss  you,  and  so  shall  I  ; 
for  your  duties  will  be  awkwardly  performed.  I 
have  not  yet  heard  from  Portsmouth ;  but  my  mind 
is  made  up,  and  nothing  can  disturb  its  quiet.  Still 
it  is  very  possible  I  may  not  find  it  so,  when  the 
news  comes.  I  can  truly  say  I  am  as  much  con- 
cerned for  your  friend's  success  as  my  own,  or  our 
own." 

To  Mrs.  Smith,  May  26,  1834.  "  My  dearest 
wife  :  You  are  a  dear  good  woman,  always  devising 
good  things  for  your  friends,  and  (if  it  were  possi- 
ble such  a  woman  could  have  any  enemies,)  doing 
good  by  design,  and  sometimes  without  design. 
When  Joel  appeared,  at  mid-day,  I  was  suffering 

marvellously  under  your  old  friend  Major .     He 

had  begun  more  than  twenty  stories,  was  in  the  midst 
of  them,  had  finished  none,  sometimes  advancing 
and  sometimes  retreating ;  he  had  work  cut  out  (you 
know  he  was  formerly  a  tailor,)  to  last  through  the 
day.  In  this  time  of  need,  enter  Joel  with  your 
letter.  I  seized  it  with  real  and  affected  joy,  told 
the  major  it  was  from  you.  He  took  the  hint,  rose, 
and  began  his  exit ;  he  did  not  stop  more  than  ten 
times  before  his  final  departure.  Your  letter,  there- 
fore, found  me,  or  rather  procured  for  me,  the  high 
felicity  of  relief  from  suffering.  I  was  happy,  very 
happy.  I  am  glad  its  contents  increased  my  pleasure. 


LIFE    OF    JUDGE    SMITH.  401 

Your  mother  is  in  more  than  usual  health.  L.  is 
about  house,  your  father  in  a  fair  way  to  do  well. 
Let  your  next  letter  give  me  a  good  account  of  your- 
self, and  the  measure  of  my  joys  will  be  full,  even  if 
the  major  should  return.  I  am  sincerely  glad  you 
are  at  Dover,  because  I  am  sure  my  loss  will  be  more 
than  overpaid  by  the  happiness  you  will  confer  on 
others.  Tell  L.  to  be  careful  of  her  health.  It  is  of 
more  value  than  many  gardens.  I  shall  hear  from 
Boston  and  Peterborough  to-morrow  evening  ;  till 
then  adieu.  Be  careful  of  your  own  precious  health, 
and  while  you  make  others  happy,  do  not  forget  the 
happiness  of  my  best  and  only  friend." 

To  Mrs.  Smith,  31st  May,  1834.  "  My  dearest 
wife :  I  have  just  sent  to  the  office,  and  am  glad  to 
find  no  letter  from  you,  —  not  because  you  do  not 
always  write  well  and  affectionately,  and  afford  me 
the  greatest  pleasure,  but  because  it  must  give  you 
some  trouble,  and  I  would  have  you  at  all  times  con- 
sult entirely  your  own  health  and  happiness,  and  the 
happiness  of  the  friends  with  whom  you  are.  I 
would  have  these  absences  devoted  to  yourself  and 
parents.  I  know  very  well  you  will  reverse  the  order, 
and  read  parents  and  self.  Well,  my  dearest,  have  it 
your  own  way.  Your  silence  also  proves  that  all  is 
going  on  well  at  Dover.  We  are  unusually  good 
here,  and  the  house  continues  very  quiet.  I  cannot 
answer  for  the  matter  of  economy.  I  find  myself  a 
little  too  much  pressed  with  a  better  and  a  fuller  table 
than  I  desire.  I  find  this  damp  weather,  as  I  always 

have,  meriting  John  F 's  pronunciation.    I  do  not 

go  out  to  it,  but  it  comes  to  me  with  a  vengeance  ; 
34» 


402  LIFE    OF    JUDGE    SMITH. 

and  Morpheus  takes  the  occasion  of  your  absence  to 
treat  me  ill.  If  he  is  kind  to  you  I  shall  forgive 
him.  Take  care,  my  dear  wife,  of  your  own  precious 
health.  Perhaps  you  may  have  forgot  (as  your  niece 
sometimes  forgot  to  love  her  enemies,)  that  health  is 
a  great  blessing.  I  don't  know  that  it  would  have 

occurred  to  me  if  Susan had   not  made  me  a 

very  long  visit  (don't  envy  me,)  and  was  so  good  as 
to  remind  me  of  it." 

Judge  Smith  was  never  more  alive  to  all  the  great 
concerns  of  society  than  at  this  period,  and  certainly 
his  mind  was  never  more  active.  "  The  great  enemy 
of  the  mind,"  he  said,  "  as  to  decay,  is  rust.  Rub- 
bing brightens,  as  rubbing  an  old  brass  vessel.  Who 
can  know  after,  that  it  is  old?  It  is  as  bright  as 
new  —  the  fashion  may  be  somewhat  different."  He 
had  the  rare  faculty  of  exercising  his  mind  on  passing 
events,  and  taking  a  warm  interest  in  whatever  was 
deserving  of  attention,  without  permitting  himself  in 
any  way  to  be  drawn  in  so  far  as  to  disturb  his  equa- 
nimity. "  I  am,"  he  said,  "  an  indifferent  spectator 
among  the  children  of  men.  I  take  no  part  with  or 
against  any  man.  My  account  with  the  world  is 
closed,  and  yet  I  am  disposed  to  indulge  no  spleen, 
much  less  to  hate  mankind."  This,  in  its  large  sense, 
which  was  that  in  which  he  intended  it,  was  true. 
As  a  public  man,  and  in  connexion  with  public 
affairs,  his  account  with  the  world  was  closed. 
Though  things  often  went  in  a  way  he  did  not  like, 
it  gave  him  no  anxious  thoughts.  Writing  in  1833 
to  a  lady,  who  was  full  of  solicitude  about  such  mat- 
ters, he  said,  "  I  am  not  so  good  a  patriot  as  you  ; 


LIFE    OF    JUDGE    SMITH.  403 

have  felt  no  anxiety  about  the  republic.  I  do  not 
think  well  of  the  master  or  crew.  If  they  run  the 
ship  on  shoals,  like  my  countryman  I  comfort  myself 
by  reflecting  that  I  am  only  a  passenger."  That  is, 
having  done  all  that  he  could,  he  felt  no  longer  any 
responsibility,  and  therefore  no  apprehension  of  evil. 
What  a  vast  accumulation  of  unhappiness  would  be 
lifted  up  from  the  world,  if  his  example  in  this  re- 
spect were  universal  !  As  the  destiny  of  mankind 
did  not  rest  on  him,  he  chose  not  to  be  borne  down 
by  its  weight.  To  a  boy  very  anxious  about  the  part 
he  was  preparing  for  a  public  exhibition  at  the 
academy  he  said,  "  Do  your  best,  but  if  you  should 
not  succeed,  you  may  console  yourself  by  the  thought 
that  possibly  the  cause  of  learning  may  not  suffer." 
There  is  in  this  remark  more  wisdom  than  appears 
on  the  surface.  We  of  this  generation  think  more  of 
the  results  of  our  actions  than  of  our  fidelity  ;  and, 
in  making  ourselves  answerable  for  that  which  be- 
longs to  the  providence  of  God,  are  impatient  be- 
cause of  the  tardy  development  of  the  divine  plan. 
In  our  vain  and  presumptuous  efforts'"  to  accomplish 
the  work  of  centuries  in  a  day,  we  forget  the  more 
important  but  less  conspicuous  duties  that  are  as- 
signed to  us. 

Judge  Smith  always  practised  a  strict  economy. 
"  The  best  motive  I  know  of,"  he  said,  "  for  saving, 
is  to  have  something  to  give."  And  the  giving  of 
money,  without  knowing  or  much  caring  how  it  was 
used,  he  considered  a  very  suspicious  kind  of  charity. 
He  did  not  altogether  like  the  modern  way  of  doing 
so  much  through  charitable  associations.  "  I  fear," 


404  LIFE    OF    JUDGE    SMITH. 

he  said,  "  we  shall  soon  have  so  many  societies  to 
promote  charity,  temperance,  religious  instruction, 
&c.,  that  we  shall  lose  all  individual  concern  in  these 
benevolent  objects.  They  will  soon  be  managed  en- 
tirely by  corporations  —  bodies  without  souls.  We 
shall  retain  our  party  feelings,  and  at  the  same  time 
commit  our  benevolence  to  the  presidents,  vice-pres- 
idents, and  executive  committees.  It  would  be  easy 
to  sho-.v  that  corporate  charities  will  soon  eat  out  per- 
sonal almsgiving  ;  and  there  can  be  as  little  doubt 
the  sums  actually  given  will  do  less  good,  will  reach 
fewer  deserving  objects.  The  expenses  of  the  admin- 
istration will  be  more  wasteful,  and  the  selections  less 
judicious  — .there  will  soon  be  corporate  beggars." 

The  variety  of  subjects  on  which  he  took  an  inter- 
est was  remarkable  ;  and  his  incidental  remarks  had 
often  the  point  and  force  of  apophthegms.  "  Carry 
but  few  clothes;  you  can  always  know  a  foolish 
woman  on  her  travels,  by  her  wardrobe."  "  The 
way  not  to  think  too  ill  of  the  world,  is  not  to  think 
too  well  of  it."  "  Who  knows  woriien  better  than 
shop-keepers?'  If  I  were  going  to  choose  a  wife 
among  the  city  young  ladies,  I  would  escort  them  in 
their  shopping  excursions."  "  Over-activity  is  a 
very  high  offence  in  the  president  of  a  college, 
principal  in  an  academy  or  common  school-master, 
and,  above  all,  in  a  clergyman.  There  is,  there 
can  be,  no  peace  in  a  parish  cursed  with  such 
a  busy-body."  "  We  err  more  frequently  by  doing 
too  much  than  too  little ;  the  latter  is  the  better  and 
the  safer  excess  of  the  two."  ."  It  requires  genius  to 
understand  genius  in  others."  "  The  question  is, 


LIFE    OF    JUDGE    SMITH.  405 

whether  we  shall  govern  our  feelings,  or  be  governed 
by  them.  Persevering  diligence  is  necessary  for  the 
former  ;  few  therefore  succeed."  "  Forced  gaiety  is 
never  exhilarating ;  the  anxious  and  sorrowful  com- 
municate from  the  countenance  rather  than  from  the 
tongue."  "  With  all  its  faults,  I  like  the  Memoirs  of 
R.  L.  Edgeworth ;  he  lived  so  charmingly  and  so 
usefully  with  his  family,  so  pleasantly  for  himself,  and 
so  instructively  for  them."  "  There  can  be  no  hurry 
in  obtaining  accurate,  thorough  knowledge."  "  Oh, 
that  we  had  good  preachers  !  I  almost  envy  the  en- 
thusiasts who  are  ravished  by  foolish  sermons." 

"  There  is  a  happy  contentedness  which  some  men 
possess,  and  which  is  indispensable  to  the  cheerful 
enjoyment  of  life.  I  am  happy  to  believe  that  I  was 
never  entirely  destitute  of  this  valuable  disposition  of 
mind.  I  have  seen  some  who  had  so  much  of  it, 
that  it  served  to  damp  their  ardor  for  improvement." 
"  My  sleep  last  night  did  me  good,  as  it  doth  the  up- 
right in  heart.''  "  He  who  acts  on  principle,  consist- 
ently, regularly,  commands  esteem,  and  can  hardly 
fail  of  success,  especially  if  he  is  moderate  in  his  de- 
sires." "  They  who  are  so  cautious  as  to  say  no- 
thing objectionable,  seldom  say  anything  good."  To 
scholars :  "  Don't  content  yourselves  with  making 
patchwork  out  of  the  thoughts  of  others.  Have 
ideas  of  your  own.  Other  people's  intellectual  trea- 
sures are  no  more  to  you  than  their  wealth.  You 
may  be  poor  in  the  midst  of  riches.  Boldly  march 
up  to  the  fountains  of  knowledge  as  a  hero  does  to  the 
cannon's  mouth."  "I  envy  you  your  constant  and 
full  employment.  This  is  better  than  a  whole  life 


406  LIFE    OF    JUDGE    SMITH. 

of  ease  and  leisure.  This  last  is  the  tedium  vita. 
There  is  no  continual  feast ;  it  is  the  occasional 
banquet  which  affords  the  most  exquisite  delight." 
"  Dying  exclamation  of  Brutus :  '  O,  Virtue  !  I  sought 
thee  as  a  substance,  but  I  find  thee  an  empty  name,' 
virtue  without  religion."  It  having  been  mentioned 
to  Judge  Smith,  as  a  remark  of  Dr.  Channing's,  that 
the  foliage  of  every  different  tree,  when  agitated  by 
the  wind,  produces  a  sound  peculiar  to  itself,  he  re- 
plied, "  That  is  a  beautiful  thought ;  I  delight  to  see 
an  attention  to  such  things,  A  love  of  flowers,  trees, 
and  natural  objects,  in  general,  is  a  proof  that  all  is 
right  about  the  heart."  "  Anxiety  is  very  unreason- 
able in  a  heathen  ;  and  I  am  sure  it  is  a  thousand 
times  worse  in  a  Christian."  "  Is  there  no  vanity  in 
saying,  no  man  bears  sorrow  better  than  I  do  ?  not, 
I  trust,  from  a  want  of  feeling,  but  from  principle. 
What  is  our  philosophy,  and,  still  more,  our  religion, 
good  for,  if  they  do  not  serve  us  on  such  occasions  ?  " 
"There  is  trouble,  '  mea  virtute  me  involve ;'  shall 
we  forever  be  found  astonished  at  the  failure  of  men 
and  banks  ?  We  see  only  the  outside  of  things." 
"  To  be  good,  learned,  and  happy  —  the  first  are  in 
our  power  —  quaere  as  to  the  last."  "  I  am  clear  in 
it,  that  humility  is  the  foundation  of  all  religion."  "  I 
have  been  quite  unwell  twice  this  winter.  Surely  it 
is  not  necessary  to  give  an  old  tenant  at  will,  like  me, 
notice  to  quit.  We  have  the  offer  from  our  Lessor  of 
a  perpetuity  in  a  better  inheritance."  Repeating  the 
words,  "When  shall  I  sleep  to  wake  no  more?" 
he  added,  in  language  more  becoming  a  Christian, 
"  When  shall  I  wake  to  sleep  no  more  ?  " 


CHAPTER   XIV. 

1834  —  1835. 

LECTURES     ON    WASHINGTON,    FRANKLIN,    JUDGE     PAR-? 
SONS NEW    ENGLAND    JURISPRUDENCE. 

"  I  HAVE  the  conviction,"  said  Judge  Smith,  in  the 
language  of  Sir  Egerton  Brydges,  "  that  life  is  yet 
altogether  joyous  to  me  —  perhaps  more  satisfactory 
and  even  more  delightful  than  in  the  effervescence  of 
youth  and  strength  of  mature  manhood.  My  eye  is 
as  delighted  with  the  grandeur  and  variety  of  inan- 
imate nature,  and  my  heart  is  as  open  to  all  the  vir- 
tues and  friendships  of  human  society."  These  words 
might  serve  as  a  motto  for  the  remainder  of  this  me- 
moir. His  whole  nature  was  never  more  alive,  nor 
his  faculties  more  vigorous  or  interested  in  a  greater 
variety  of  objects.  Happy  in  his  home,  his  fortune 
and  his  intellectual  possessions,  he  seemed  more  than 
ever  desirous  that  others,  should  participate  in  the 
blessings  which  a  kind  Providence  had  bestowed  upon 
him.  He  exercised  an  enlarged  hospitality.  He 
gave  away  in  charity  usually  a  tenth  and  sometimes 
more  than  a  sixth  part  of  his  income.  He  loved  to 


408  LIFE     OF     JUDGE     SMITH. 

have  the  young  with  him,  that,  enjoying  their  society, 
he  might  at  the  same  time  amuse  and  instruct  them. 
His  library  was  always  open  for  his  friends  to  consult, 
and  in  the  lending  of  books  his  practice  corresponded 
with  his  words.  "  Nothing,"  he  said,  "  is  so  offen- 
sive as  locking  up  books.  The  light  of  no  man's 
lamp  was  ever  yet  diminished  by  allowing  another  to 
kindle  his  by  it.  What  man  ever  regretted  the  free 
use  of  his  library  to  poor  scholars  ?  It  would  prove 
him  altogether  unworthy  of  such  a  treasure.  It  is 
very  true  that  the  free  use  of  the  library  would  in 
time  wear  out  the  books.  Time  without  any  use 
will,  in  a  great  degree,  produce  the  same  results. 
Books  were  made  to  be  used,  and  of  course  worn 
out." 

Judge  Smith  lectured  in  many  different  towns,  and 
in  all  his  lectures,  whatever  the  subject,  there  was 
one  paramount  object.  They  were  all  prepared  for 
the  young,  and  with  the  earnest  wish  to  awaken  and 
strengthen  in  them  the  love  of  industry,  a  desire  for 
intellectual  improvement,  and  above  all,  a  reverence  for 
moral  and  religious  principle.  Those  who  have  read 
the  last  chapter,  have  seen  how  this  object  entered 
into  the  first  lectures  that  he  prepared.  In  1834,  he 
delivered  a  lecture  on  the  private  life  of  Washington, 
and  another  on  Franklin.  They  were  not  for  the 
learned.  He  engaged  in  no  curious  historical  in- 
quiries, and  brought  out  none  of  the  gossiping  details, 
with  which  his  personal  intercourse  with  Washington 
must  have  furnished  him,  and  which  might  have  given 
a  sort  of  factitious  interest  to  the  performance.  His 
purpose  was  too  serious  for  that.  He  endeavored  to 


LIFE     OF     JUDGE     SMITH.  409 

hold  up  to  the  young  those  great  and  distinguished 
men,  and  to  impress  upon  them  the  principles  of 
thought  and  action  through  which  they  had  become 
great.  "  The  private  character  of  Washington,"  he 
said,  "  is  the  subject  of  my  discourse.  It  is  not  my 
intention  to  speak  of  him  as  a  hero  —  the  leader  of 
that  army  which  carried  us  triumphantly  through  the 
war  of  the  revolution,  nor  to  treat  of  his  civil  admin- 
istration, no  less  glorious  to  himself  than  to  his  coun- 
try. I  was  favored  with  a  near  view  of  Washington, 
in  his  high  office,  during  the  greater  part  of  it,  and 
at  its  close.  I  now  see  him  standing  for  the  last  time 
in  the  midst  of  the  representatives  of  the  people  of 
the  United  States,  making  his  last  public  address. 
It  was  a  spectacle  full  of  sublimity  and  grandeur. 
His  communication  was  by  speech,  face  to  face,  not 
by  written  message,  as  the  less  impressive  usage  now 

is How  natural  that  the  representatives  of  a 

great  people  should  attempt  to  disclose  some  of  the 
emotions  the  occasion  could  not  fail  to  awaken  !  .  .  . 
Of  the  body  which  made  the  answer,  only  six  now 
remain,  Gallatin,  Livingston,1  Madison,1  Macon,1  Jack- 
son, and  last  and  least,  the  person  who  now  addresses 
you. 

"  But  leaving  the  general  and  the  statesman,  it  will 
be  my  endeavor  to  draw  from  the  private  life  some 
useful  instruction  applicable  to  us  all,  and  especially 
our  young  men.  Maupertuis,  in  concluding  his  char- 
acter of  Frederic  the  Second,  says,  '  many  a  private 
man  might  make  a  great  king,  but  where  is  the  king 


i  Now  dead. 
35 


410  LIFE    OF    JUDGE    SMITH. 

that  would  make  a  great  private  man  ? '  Washington 
was  an  exception.  When  you  saw  him  in  office,  you 
would  pronounce  him  in  his  proper  sphere  ;  but  when 
you  beheld  him  in  private  life,  you  would  at  once 
allow  that  office  had  not  exalted  him,  still  less  cor- . 
rupted  him,  as  it  does  too  many  of  our  race." 

Judge  Smith  then  goes  on  to  speak  of  Washing- 
ton's modesty  and  humility.  "  I  am  not  sure  that  to 
these  he  was  not  much  indebted  for.  all  the  great 
qualities  that  distinguished  him  from  other  men  ;  for 
his  low  estimate  of  himself  did  not  prevent  his  accept- 
ing, in  urgent  calls  of  duty,  high,  arduous  and  diffi- 
cult offices,  though  the  distrust  of  his  abilities,  and 
his  innate  modesty,  always  led  him  to  retire. when- 
ever his  services  could  be  dispensed  with 

He  made  no  claim  to  belong  to  the  higher  order 
of  men  of  genius  —  the  men  who  see  the  light  of 
truth  before  it  becomes  manifest  to  the  rest  of 
mankind.  Even  as  the  sun  illuminates  the  hills 
while  it  is  yet  below  the  horizon,  the  highest  minds 
are  the  first  to  catch  and  reflect  a  light,  which,  with- 
out their  assistance,  must  in  time  be  visible  to  those 
who  lie  far  beneath  them.  Light  did  not  come  to 
Washington  sooner  than  to  others,  but  he  made  a 
better  use  of  it  when  it  did  come.  He  walked  by  it 
and  he  made  the  most  of  it,  whilst  too  many  others, 
in  the  midst  of  the  light  shed  by  genius,  wark  in  dark- 
ness. It  was  wisdom  accessible  to  all,  that  wisdom 
which  dwells  with  prudence,  not  genius,  which  is  too 
apt  to  dwell  with  imprudence,  that  promoted  Wash- 
ington and  brought  him  to  honor That  same 

prudence  and  modesty  kept  his  head  from  becoming 


LIFE     OF     JUDGE     SMITH.  411 

giddy  in  the  highest  office,  whilst  his  superiors  in  age 
and  dignity  occupied  lower  grades.  He  maintained 
at  all  times  a  strict  watch  over  himself,  as  strict  as 
over  his  men,  to  .see  that  both  acted  well  their  several 
parts. 

"  The  same  modesty  and  humility  prevented  his 
putting  himself  in  the  way  of  receiving  those  flatter- 
ing attentions,  which  are  so  eagerly  coveted  by  the 
vulgar  great.  When  he  put  on  the  country  gentle- 
man, he  put  off  the  general  and  commander-in-chief. 
It  was  not  his  practice  to  fight  his  battles  over  again, 
and  entertain  his  company  with  a  recital  of  the  great 
scenes  in  which  he  had  been  the  principal  actor.  He 
rarely  spoke  of  the  war,  and  still  more  rarely  of  him- 
self. His  talk  was  of  agriculture  and  rural  affairs, 
of  what  would  best  improve  the  face  of  the  country, 
its  facilities  of  intercourse,  the  understanding,  the 
morals  and  manners  of  its  inhabitants.  A  few  years 
afterwards,  when  he  was  called  to  enter  upon  the 
untried  office  and  duties  assigned  him  by  the  unani- 
mous voice  of  the  nation,  he  did  not  suffer  this  trans- 
cendent mark  of  public  approbation  to  disturb  the 
just  balance  of  his  modest  mind.  Like  a  wise  and 
good  man,  as  well  as  humble  Christian,  his  first  offi- 
cial act  was  '  to  supplicate  that  Almighty  Being  who 
rules  over  the  universe,  who  presides  in  the  councils 
of  nations,  and  whose  providential  aids  can  supply 
every  human  defect,  to  enable  him  to  execute  with 
success  the  functions  allotted  to  his  charge  ; '  and  he 
quitted  office  with  the  same  modest  and  humble  opin- 
ion of  himself  with  which  he  entered  upon  it." 

Next  the  lecturer  speaks  of  Washington's  coolness 


412  LIFE     OF     JUDGE     SMITH. 

and  firmness  —  "  Not  the  courage  which  is  so  com- 
mon a  virtue  in  military  men  as  to  be  scarcely  de- 
serving of  praise.  .  .  .  When  Washington  was  once 
satisfied  which  way  the  path  of  duty  pointed,  he  did 
not  hesitate  a  moment  longer,  he  boldly  marched  to 
his  object.  He  was  not  hasty  in  forming  his  resolu- 
tions. He  was  cool  and  collected.  He  was  the  very 
opposite  of  rash.  It  was  his  habit  from  early  life  and 
in  every  business  of  importance,  to  open  his  mind  to 
all  the  lights  bearing  on  the  question,  and  impartially 
to  consider  them,  and  then  decide,  and  firmly  adhere 
to  that  decision,  till  his  judgment  was  convinced  of 
its  error.  He  did  not  waver  —  halt  between  two 
opinions.  He  showed  his  modesty  and  diffidence  in 
forming  opinions,  and  his  inflexible  firmness  in  carry- 
ing his  well-formed  judgments  into  execution.  There 
is  a  striking  proof  of  his  forbearance  and  fortitude 
that  deserves  to  be  mentioned.  I  well  remember 
that  early  in  the  revolutionary  war,  Washington  was 
censured  for  what  was  called  the  evacuating  and  re- 
treating system  of  his  military  operations,  and  some 
went  so  far  as  to  impute  it  to  want  of  courage  and  spirit. 
You  may  be  sure  he  felt,  strongly  felt,  the  injustice  and 
cruelty  of  the  charge.  It  was  in  his  power  to  have 
vindicated  himself  at  any  moment  by  showing  the 
true  state  of  his  army,  its  actual  numbers,  far  less  than 
supposed,  its  discipline,  or  rather  its  want  of  disci- 
pline, its  equipments  wholly  unfit  for  offensive  opera- 
tions. Among  his  wants  were  even  arms  and  am- 
munition. But  his  duty  to  his  country,  devotion  to 
the  cause,  required  the  concealment  of  all  these 
things  from  his  countrymen,  that  the  enemy  might 


LIFE     OF     JUDGE     SMITH.  413 

not  know  them.  And  Washington  was  magnani- 
mous enough  patiently  to  suffer  reproaches  in  what 
most  nearly  concerns  a  soldier's  honor,  for  the  safety 
and  well-being  of  his  country.  Time,  and  even  his 
enemies,  now  do  him  that  justice  which  his  country- 
men then  denied  him."  Washington  made  no  pre- 
tensions to  extraordinary  courage.  "  A  report  was 
at  one  time  circulated,  to  magnify  his  courage,  that 
he  had  been  heard  to  say,  '  that  he  knew  no  music 
so  pleasing  as  the  whistling  of  bullets.'  When  asked 
if  he  ever  said  so,  he  replied,  '  If  I  ever  did,  I 
must  have  been  a  very  young  man.'  I  doubt  much 
whether  any  man  that  ever  heard  this  species  of  mu- 
sic would  incline  to  say,  '  da  capo,  let  us  have  that 
tune  over  again.' 

"  I  can  by  no  means  agree  with  the  modest  Wash- 
ington in  his  estimate  of  himself,  that  he  inherited 
from  nature  inferior  endowments.  They  were  highly 
respectable,  and  of  the  kind  that  fitted  him  to  be  a 
leader.  Washington's  coadjutors  might  have  applied 
to  him  the  injunction  of  the  apostle  Eliot  to  Dr.  In- 
crease Mather,  a  century  before.  '  Brother,'  said  the 
venerable  man,  '  the  Lord  has  blessed  you  with  a 
leading  spirit,  as  he  did  Mr.  Mitchell,  who  has  gone 
unto  him.  I  pray,  brother,  lead  us  in  our  exercises  — 
do  for  us  all  the  good  you  can.' 

"  Washington  was  endued  with  a  wonderful  saga- 
city, in  judging  correctly  of  others,  and  was  particu- 
larly successful  in  drawing  forth  their  talents  to  the 
best  advantage  for  the  public,  and,  I  verily  believe, 
never  in  all  his  life  called  to  office  an  unqualified 
person,  unless  where,  after  the  most  impartial  scru- 
35* 


414  LIFE    OF    JUDGE    SMITH. 

tiny,  he  was  himself  deceived.  He  selected  the  best, 
the  public  good  his  guide  and  aim.  As  to  dismissing 
a  qualified  man  from  office,  that  he  might  fill  his 
place  with  one  less  qualified,  to  gratify  any  selfish 
motive,  it  was  just  as  impossible  as  that  he  should 
have  taken  a  bribe  from  the  enemy,  or  sold  his  coun- 
try for  thirty  pieces  of  silver. 

"  His  means  of  education,  and  his  early  stock  of 
acquired  knowledge,  what  is  called  learning,  could 
not  have  been  great.  But  his  habits  of  inquiry,  from 
early  life  to  its  close,  were  remarkable.  He  was 
never  satisfied  with  investigating.  He  had  the  calm- 
ness and  temper  of  mind  best  fitted  for  deliberation. 
Some  men  cannot  deliberate  ;  they  act,  honestly  if 
you  will,  but  from  impulse,  and  sometimes,  alas !  that 
impulse  given  by  cunning,  interested  and  designing, 
and  oftentimes,  the  meanest  and  worst  of  men.  To 
conjecture  in  any  given  case,  what  such  a  statesman 
will  do,  you  must  first  calculate  the  impelling  force, 
or  the  influence  he  is  under.  Washington  acted  from 
himself. 

"  I  am  inclined  to  think  that,  on  a  careful  analysis 
of  the  mind  and  heart  of  Washington,  sound  judg- 
ment and  sound  discretion  were  the  most  remarkable. 
He  was  discreet,  and  his  conduct  regulated  by  prin- 
ciple in  early  life,  at  a  time  when  youth  is  almost 
privileged  to  be  rash.  I  incline,  also,  to  the  opinion, 
that  judgment  and  prudence  in  youth  are  not  so  un- 
common as  is  generally  supposed.  Edmund  Burke 
used  to  say,  that  those  who  did  not  possess  prudence 
early,  were  apt  to  miss  it  late  ;  and  if  I  may  be  par- 
doned the  seeming  vanity  of  saying  I  agree  with  Ed- 


LIFE    OF   JUDGE    SMITH.  415 

mund  Burke,  I  would  say  my  experience  and  obser- 
vation confirm  the  remark. 

"It  is  impossible  to  know  much  of  Washington's 
public  or  private  life,  and  be  ignorant  that  his  pas- 
sions were  naturally  strong,  and  that  there  was  a 
quickness  in  his  sensibility  to  anything  apparently 
offensive,  and  upon  a  few  occasions  it  required  the 
full  force  of  his  strong  mind  and  good  principles, 
early  implanted  and  carefully  cultivated,  to  give  him 
the  mastery  over  himself.  Such  victories  were,  per- 
haps, as  difficult  as  any  he  achieved.  Till  he  had 
conquered  himself,  he  never  could  hope  to  obtain  a 
strong  victory  over  his  fellow-men.  No  man  more 
largely  shared  their  confidence  in  every  situation  in 
life.  Who  can  sufficiently  estimate  the  value,  to  his 
country,  of  Washington's  name  ?  That  we  should 
pass  safely  through  the  war  of  the  revolution,  that 
the  constitution  of  the  United  States  should  be 
adopted,  that  our  neutrality,  amid  the  terrible  scenes 
of  the  French  revolution,  should  be  maintained,  and 
that  we  should  advance  so  rapidly  to  greatness  and 
strength — who  can  say  that  any  or  all  these  great 
events  would  have  happened  without  a  Washington  ? 
Who  believes  they  could  have  happened,  if  Wash- 
ington's influence  had  been  cast  into  the  opposite 
scale  ? 

"  To  the  small  number  of  our  race,  who  seem  to 
be  born,  not  for  themselves  but  for  their  country,  and 
who  fulfil  their  destiny  by  a  succession  of  great  and 
good  actions,  all  tending  to  the  best  good  of  the 
country  that  gave  them  birth,  Washington's  name 
must  now  be  added.  He,  and  I  trust  his  country, 


416  LIFE    OF    JUDGE    SMITH. 

are  safe.  His  cause  has  been  tried,  verdict  given, 
and  that  judgment  passed  which  is  never  to  be  re- 
versed  

"  I  have  presented  'before  you  some  of  the  dis- 
tinguishing traits  of  Washington  ;  but  his  character 
is  not  the  result  of  any  one  or  more  of  them,  taken 
singly  and  alone.  Other  men  may  have  possessed 
equal  modesty  and  humility,  as  much  valor  and  cour- 
age, fortitude,  patriotism,  greater  endowments  from 
nature,  and  a  far  more  finished  and  complete  educa- 
tion, equal  prudence  and  discretion,  equal  mastery 
over  their  passions,  equal  disinterestedness,  as  little 
vanity,  and  as  great  devotion  of  heart  to  their  Maker 
and  of  life  to  their  country.  But  who  has  united 
all  these  qualities  of  the  head  and  heart  in  due 
measure  and  proportion,  so  as  to  make  one  complete 
and  almost  perfect  whole  ?  The  virtues  of  other 
men  are  like  scattered  stars,  appearing  here  and  there 
on  the  face  of  the  heavens.  But  Washington's,  the 
galaxy  or  milky  way,  a  great  assemblage  of  stars, 
exhibiting  an  uninterrupted  brightness.  In  his  cha- 
racter is  seen,  not  so  much  the  display  of  any  one 
virtue,  as  the  possession  of  them  all  united  —  the 
most  difficult  as  well  as  the  more  easy ;  the  good 
and  the  useful,  presiding,  animating,  governing,  and 
sometimes  restraining  the  rest.  For  our  very  vir- 
tues sometimes  require  the  curb  of  prudence  and 
religion. 

"  How  was  it  that  a  man  like  Washington,  with  a 
genius  not  superior  to  thousands  of  his  countrymen, 
with  an  education  below  the  average  of  educated 
men  in  that  early  day,  who  had  been  hardly  out  of 


LIFE    OF    JUDGE    SMITH.  417 

his  native  province,  and  while  in  it,  for  several  suc- 
cessive years,  encountering  the  hard  service  and 
perils  of  Indian  warfare  —  an  unpromising  field  of 
education  —  without  a  master  to  teach  him  the  art 
of  war,  devoted  to  agriculture,  and  the  every-day 
duties  of  hospitality  and  good-neighborhood  —  how 
is  it  that  such  a  man  could  fill  so  great  a  space,  do 
so  much  good,  perform  such  difficult  and  arduous 
duties,  such  as  no  other  man  in  any  age  or  country 
has  ever  yet  done  ?  I  do  not  profess  to  be  able  to 
resolve  these  questions  entirely  to  my  own  satis- 
faction ;  they  are  too  hard  for  me,  and  I  am  con- 
strained to  repeat,  what  I  publicly  said  thirty-four 
years  ago,  on  the  occasion  of  his  death :  '  When  the 
Almighty,  in  his  Providence,  intends  the  accomplish- 
ment of  some  great  and  glorious  work  upon  earth, 
he  raises  up  fit  instruments  among  the  children  of 
men  to  accomplish  his  ends  ;  and  surely  this  was  an 
occasion  worthy  a  divine  interposition.'  " 

I  am  aware  that  there  is  little  that  is  new  in 
these  remarks  ;  but  they  cannot  be  too  often  or  too 
earnestly  enforced.  The  whole  lecture,  as  it  was 
delivered,  seemed  like  a  satire  on  the  politics  of  the 
day ;  and  indeed  what  could  more  severely  rebuke 
the  maneuvering  partisans  of  the  times,  than  the 
character  and  example  of  Washington?  "For  he 
was  honest  and  sincere  in  politics,  where  many  men, 
God  knows  why,  think  they  may  accommodate  their 
political  opinions  to  their  interests." 

"  Suppose  the  law  of  our  nature  should  be  re- 
pealed, and  this  great  and  good  man  should  be  suf- 
fered to  rise  from  the  grave,  and  revisit  that  city, 


418  LIFE     OF     JUDGE     SMITH. 

called  by  his  name,  and  the  country  once  so  dear  to 
his  heart.  To  which  of  the  great  parties  would  he 
attach  himself  ?  All  pretend  to  be  his  disciples,  and 
to  walk  in  his  footsteps.  It  is  dangerous  to  pursue 
the  suggestion.  Here  let  me  stop.  Each  of  my 
hearers  may  safely  and  silently  furnish  an  answer  for 
himself." 

In  this  lecture  Judge  Smith  related  an  incident 
that  occurred  while  he  resided  in  Philadelphia,  dur- 
ing Washington's  presidency.  "  An  Italian  adven- 
turer, with  some  skill  in  sculpture  and  the  fine  arts, 
waited  on  Washington  and  Hamilton-,  requesting 
each  to  sit  for  a  cast  or  marble .  bust,  and  for  per- 
mission to  set  them  up  in  the  halls  of  their  respective 
dwellings.  It  was  distinctly  understood  by  all  the 
parties,  that  it  was  wholly  the  affair  of  the  sculptor, 
and  as  a  mean  of  recommending  his  art,  and  obtain- 
ing employment.  The  busts  were  finished  and  set 
up,  and  seen  by  all  visitors  at  these  great  houses;  and 
had  their  share  of  admiration.  All  this  was  very 
well  and  as  it  should  be  ;  but  it  occurred  to  the  wily 
Italian  that,  with  his  stock  of  impudence,  he  could 
make  these  same  busts  the  occasion  of  spunging 
some  money  out  of  these  great  men.  He  first  ap- 
plied to  Washington,  and  demanded  two  hundred 
dollars,  as  a  moderate  price  for  the  work  he  had  done 
for  him.  Washington  considered  it  as  a  gross  im- 
position, and  rejected  the  claim,  telling  the  artist 
he  might  remove  the  bust  at  any  moment  he  pleased. 
Hamilton,  viewing  the  matter  in  the  same  light, 
nevertheless  borrowed  the  money  and  satisfied  the 
claim." 


LIFE    OF   JUDGE    SMITH.  419 

As  this  anecdote  shows  Hamilton  only  in  his  weak- 
ness, it  is  but  an  act  of  justice  to  add  Judge  Smith's 
full  and  deliberate  opinion  of  one  whom,  in  spite  of 
his  infirmities,  he  was  accustomed  to  speak  of  as  a 
most  upright,  disinterested  man,  and  the  ablest  of  all 
the  statesmen  who  took  a  part  in  forming  the  consti- 
tution of  the  United  States.  He  believed  that  there 
was  no  one  on  whom,  whether  in  civil  or  military 
affairs,  Washington  depended  so  much ;  and  always 
spoke  of  him  as  the  life  and  soul  of  Washington's 
administration.  In  a  letter  to  John  C.  Hamilton, 
14th  April,  1836,  Judge  Smith  said,  and  the  same 
views  he  often  expressed  in  conversation,  —  "  Your 
father  was  the  least  vindictive  —  no,  that  is  not  the 
proper  word  —  he  was  the  most  magnanimous  of 
men,  and  the  last  to  press  a  vanquished  enemy.. 
When  attacked  by  calumny,  or  in  any  other  way,  he 
instinctively  faced  the  foe,  and  was  sure  to  throw 
down  his  weapons  of  defence  when  the  purity  and 
honesty  of  his  character  were  proved  or  admitted. 
What  has  been  said  of  Fox  (there  was  a  strong  re- 
semblance in  mind  and  heart  between  the  two  men,) 
eminently  belonged  to  your  father,  that  no  human 
being  was  ever  more  free  from  the  taint  of  malignity, 
vanity  or  falsehood.  No  man  had  more  ardent  and 
affectionate  friends  than  both.  Both  statesmen  (a 
praise  that  does  not  belong  to  the  class,)  were  made 
to  .be  loved.  Your  father  carried  frankness  and 
openness  perhaps  to  excess.  He  scorned  all  artifice, 
wore  no  disguise,  arid  was  by  far  the  least  selfish  of 
all  the  children  of  men  I  ever  knew.  He  was,. in- 
deed, all  for  the  public,  and  nothing  for  himself.  I 


420  LIFE    OF    JUDGE    SMITfi. 

hope  you  will  be  able  to  delineate  his  character  with 
the  utmost  exactness,  stating  it  just  as  it  was.  Any- 
thing like  exaggeration  would  be  an  equal  offence 
against  duty  and  good  taste.  And  yet  this  is  a  com- 
mon fault  among  biographers.  But  you  have  no 
common  character  to  deal  with.  Your  difficulty  will 
not  be  in  the  lack  of  materials,  but  in  their  abun- 
dance and  richness. 

"  You  must,  I  think,  depend  almost  entirely  on  the 
written  remains  of  the  time.  I  have  been  sensibly 
struck,  in  looking  over  the  ayes  and  noes  on  the 
resolutions  of  censure  in  1793,  to  find  myself  the 
only  living  member  who  voted  against  the  resolu- 
tions. But,  by  the  way,  I  have  not  heard  of  Ben- 
son's death.  Two  only,  I  believe,  Macon  and  Madi- 
son, remain  of  the  little  adverse  squadron,  in  number 
twelve  —  the  same  number  that  voted  against  Wash- 
ington's administration  on  the  answer  of  the  house  to 
his  last  speech.  They  would  not  even  pay  a  civil 
compliment  at  parting.  There  was  a  propriety  in 
thus  coupling  the  two  names  of  Washington  and 
Hamilton.  It  was  their  good  fortune  to  enable  each 
other  to  do  the  most  good.  Their  friends  and  ene- 
mies were  generally  the  same ;  the  former  had  the 
greater  number  of  false  friends,  and  the  latter  the 
most  devoted. 

"  The  length  in  point  of  time  and  the  busy  life  I 
have  led,  do  not  allow  me  the  pleasure  of  communi- 
cating things  which  in  any  degree  can  aid  your  laud- 
able and  pious  design.  I  can  only  heartily  wish  you 
success. 

"I  shall  never  forget   the  first  time  I  saw  your 


LIFE    OF    JUDGE    SMITH.  421 

father,  then  a  young  man.  It  was  at  the  camp  on  or 
near  the  Hudson,  I  think  in  1781.  He  seemed  a 
visiter.  I  spent  the  evening  in  the  same  public  house, 
unknowing  and  unknown,  about  twenty-one.  The 
company  seemed  highly  respectable,  and  the  conver- 
sation turned  on  the  topics  of  the  day.  I  was  struck 
with  the  conversation  talents,  ready  and  entertaining, 
and  with  the  superior  reasoning  powers  of  one  who 
seemed  to  take  the  lead  ;  it  exceeded  anything  I  had 
before  seen,  and  even  my  conceptions.  When  the 
company  retired,  on  inquiry  I  found  it  was  Col. 
Hamilton  I  admired  so  much." 

It  so  happened  that  Judge  Smith  gave  his  lecture 
on  Washington  at  Lowell,  at  the  same  time  that  Pro- 
fessor Silliman  was  lecturing  there.  As  he  was  going 
up  the  steps  of  the  hotel,  after  his  return  from  the 
lyceum,  Mr.  Silliman,  who  followed  immediately  after, 
said  with  earnestness,  "  Judge  Smith,  every  line  of 
your  lecture  went  directly  to  my  heart."  "  It  could 
not  have  gone  to  a  better  place,"  was  the  reply,  as 
prompt  as  it  was  graceful. 

Imperfect  and  disconnected  as  these  extracts  from 
the  lecture  on  Washington  have  been,  our  sketch 
of  that  on  Franklin  must  be  still  more  so.  "  Every 
act,"  he  said,  "  and  every  saying  of  this  great  man 
is  a  text  upon  which  a  good  practical  discourse  might 
be  written."  "  The  secret  of  his  success  was  that 
he  was  ever  awake,  and  suffered  no  opportunity  of 
improvement  to  escape  him.  At  the  same  time  he 
did  not  neglect  his  business  and  calling."  "  When 
you  look  at  Franklin,  at  sixty  and  seventy,  and  find 
him  standing  before  kings,  where  Solomon  says  the 
36 


422  LIFE    OF    JUDGE    SMITH. 

diligent  may  hope  to  stand,  and,  what  is  far  more, 
the  intimate  and  valued  associate  of  patriots  and 
sages,  the  learned  philosopher  and  the  able  statesman, 
you  wonder  and  admire.  Is  this  the  poor,  friendless, 
illiterate  printer's  boy,  who  had  no  one  to  take  him 
by  the  hand  and  lead  him  up  this  difficult  ascent,  to 
this  proud  eminence  ?  But  your  wonder  ceases, 
when  you  trace  his  successive  steps  in  the  journey  of 
life.  You  find  there  is  nothing  miraculous  in  the 
case ;  all  is  natural.  To  the  bounty  of  Heaven  he 
was  indebted  for  a  sound  mind  in  a  sound  body. 
The  rest,  under  Providence,  was  all  his  own." 

"On  the  subject  of  jejigion,  I  would  by  no  means 
propose  Franklin  as  a  model  for  young  or  old.  His 
notions  were  crude,  and  by  no  means  well-considered. 
His  religious  notions  evidently  grew  better  as  he 
grew  older;  He  seems,  in  more  than  one  place  in 
his  autobiography,  to  insinuate  that  free  thinking 
had  produced  no  good  fruits  in  himself,  and  had 
worked  badly  in  others  whom  he  had  taken  some 
pains  to  indoctrinate.  He  says  the  great  uncertainty 
he  found  in  metaphysical  reasonings  disgusted  him, 
and  he  quitted  that  kind  of  reading  and  study  for 
others  more  useful.  He  was  wise  in  this ;  it  might 
have  ruined  him." 

"  As  an  editor,  Franklin  carefully  excluded  all  libel- 
ling and  personal  abuse,  which  he  observes,  of  late 
years  (more  than  half  a  century  ago)  has  become  so 
disgraceful  to  our  country.  What  would  he  think  if 
he  lived  now,  when  we  have  calumny  without  wit, 
served  up  in  a  style  as  coarse  as  the  matter.  Frank- 
lin was  a  scholar,  wrote  pure,  elegant  English,  and 


LIFE    OF    JUDGE    SMITH.  423 

took  an  active,  decent  part  in  the  politics  of  the  day. 
His  .paper  now  would  receive  no  encouragement,  I 
fear.  Does  this  prove  that  we  have  made  advances 
in  good  taste  and  in  good  morals  ?  Perhaps,  how.- 
ever,  we  are  unjust  when  we  charge  the  whole  evil 
to  the  bad  taste  and  wicked  propensities  of  the  editor 
and  publisher.  If  there  were  no  receivers  of  stolen 
goods,  there  would  be  no  thieves  ;  so  if  no  listening 
ears  for  calumny  and  slander,  we  should  have  fewer 
lying  tongues  and  poisonous  pens." 

"  Franklin  mentions,  in  his  autobiography,  having 
narrowly  escaped,  soon  after  his  apprenticeship  com- 
menced, two  great  evils  ;  the  first,  that  of  being  a 
poet.  He  thinks  he  would  have  made  a  very  indiffer- 
ent one,  and  I  see  no  reason  to  differ  from  .him  in 
this  opinion.  The  second  was  a  taste  for  polemi- 
cal divinity,  disputing  about  religion.  It  is  not  easy 
to  conceive  of  a  worse  aliment  for  a  young,  susceptible 
and  imaginative  mind  ;  feeding  on  husks  to  the  body, 
is  nothing  compared  to  it." 

But  we  have  not  room  even  for  short  extracts  like 
these.  The  lecturer  earnestly  commends  to  all,  the 
careful  study  of  Franklin's  Life  and  Works,  as  he 
had  before  with  more  earnestness  recommended 
the  Life  and  Correspondence  of  Washington.1  The 
lecture  closes  with  an  account  of  the  famous  Hutch- 
inson  papers,  which  produced  such  an  excitement 
here  and  in  England.  Hutchinson  and  Oliver,  it 
will  be  remembered,  had,  in  private  letters,  been 


1  By  Mr.  Sparks,  of  which  a  part  only  had  then,  (1835,)  been  pub- 
lished. .-;.;•>•*  t 


424  LIFE    OF    JUDGE    SMITH. 

urging  the  British  ministry  to  adopt  stronger  mea- 
sures for  the  subjection  of  the  colonies.  These  let- 
ters came  into  Franklin's  possession  the  latter  part 
of  1772,  and  were  by  him  forwarded  immediately  to 
Mr.  Gushing,  speaker  of  the  Massachusetts  assembly  ; 
but  with  a  strict  injunction,  conformably  with  his  en- 
gagement with  the  person  from  whom  he  received 
them,  whose  name  he  was  not  at  liberty  to  disclose, 
that  the  letters  should  not  be  printed,  nor  any  copies 
taken,  but  merely  shown  to  some  particular  persons  for 
their  satisfaction  only.  Judge  Smith,  after  giving  some 
account  of  these  papers,  and  of  the  insult  to  Frank- 
lin, the  29th  of  January,  1774,  says  ;  "  I  was  then  a 
boy  at  school,  but  well  remember  the  effect  it  pro- 
duced on  the  public  mind.  I  have  no  doubt  it  served 
to  brace  up  many  a  doubting  mind,  and  nerve  many 
an  arm  for  the  combat  which  quickly  followed."  The 
whole  account  is  too  long  to  be  copied  here ;  but  the 
closing  remarks  on  the  conduct  of  Dr.  Williamson, 
who  boasted  of  having  procured  the  papers  for  Frank- 
lin, and  of  the  patriots  of  Massachusetts,  for  the  use 
they  made  of  them,  deserve  to  be  borne  in  mind  by 
all  public  men.  "  There  are  circumstances,"  he  says, 
"  which  would  lead  us  to  doubt  the  accuracy  of  Dr. 
Williamson's  story.  I  was  well  and  intimately  ac- 
quainted with  him,  and  have  no  doubt  that  he  was 
capable  of  doing  the  act  as  related.  But  be  this  as 
it  may,  I  do  not  find  myself  quite  able  to  approve  the 
act.  According  to  his  own  account,  he  practised  a 
deception,  and  the  difference  between  telling  a  lie 
and  communicating  or  acting  one,  is  hardly  worth 
regarding.  Indeed,  the  lie  direct  is  the  more  manly 


LIFE     OF     JUDGE      SMITH.  425 

of  the  two ;  deception  in  any  form  is  not  a  high- 
minded  vice.  For  the  same  reason,  the  conduct  of 
the  late  Governor  Hancock  and  some  others,  in  this 
transaction,  as  it  has  been  stated,  seems  far  from  com- 
mendable. You  recollect  the  letters  were  forwarded 
by  Dr.  Franklin,  in  strict  confidence  that  no  copies 
should  be  taken,  yet  they  were  copied  and  printed. 
It  was  thought  the  public  good  required  it.  I  believe 
the  public  good  requires  nothing  which  is  not  honest 
and  honorable.  When  the  letters  were  read  in  the 
house,  all  felt  the  desire  to  see  them  in  print ;  but 
how  to  evade  the  conditions,  not  to  take  copies  or  to 
print,  was  the  problem  to  be  solved.  Three  courses 
lay  before  them  ;  first,  strictly  adhere  to  the  terms  ; 
second,  boldly  violate  them,  and  publish  ;  third,  evade 
the  restrictions  by  some  ingenious  trick.  The  latter 
course  was  adopted.  The  restriction  as  to  taking 
copies,  was  predicated,  it  was  said,  on  the  idea  that 
no  copies  had  been  taken  anywhere.  Mr.  Hancock 
rises  in  his  seat  and  produces  copies  of  the  letters, 
and  one  account  says,  declaring  that  they  had  been 
sent  to  him  from  England ;  another,  that  it  was  so 
stated  by  others.  Hancock's  copies  were  doubtless 
taken  here,  and  to  be  used  as  they  were  in  fact  used. 
All  now  agreed  that  the  restriction  was  virtually  re- 
pealed, and  the  condition  no  longer  binding;  the 
letters  were  already  public,  and  there  was  no  harm 
in  adding  a  little  to  the  publicity.  The  trick  satisfied 
the  scruples  of  all,  and  the  newspapers  had  the  let- 
ters. 

"  I  do  not  say  that  all  concerned  intended  to  act 
a  base  part ;  I  know  that  with  honest  politicians,  if 


426  LIFE    OF    JUDGE    SMITH. 

there  be  now  any  such  class,  strong  party  feeling, 
vehement  party  zeal,  are  apt  to  weaken  the  force  of 
conscience,  and  counteract  the  sense  of  honor,  or  at 
least  to  pervert  the  judgment  for  a  while,  and  lead  it 
to  approve  the  doctrine,  that  the  end  sanctifies  the 
means.  And  we  have  sometimes  had  the  pain  to 
see  a  man  applauded  for  a  political  manoeuvre, 
which  in  truth  ought  to  have  consigned  his  name  to 
infamy  and  dishonor.  On  the  occasion  which  has 
called  for,  and  I  hope  justified  these  remarks,  an 
honest  man,  and  especially  if  he  happened  at  the 
same  time  to  be  a  Christian,  would  have  said,  '  It 
would  seem,  in  my  judgment,  useful  to  publish  these 
letters,  for  the  good  it  will  do.  Hutchinson  and 
Oliver  have  justly  merited  our  reprobation,  but  it 
cannot  be  done  without  a  breach  of  confidence  ;  it 
must  not,  therefore,  be  done.  Heaven,  if  it  intends 
to  save  us,  will  send  deliverance  from  some  other 
quarter.  If  we  perish,  we  perish.  If  we  lose  our 
country  and  our  freedom,  let  us  at  least  preserve  our 
faith  and  our  honor.'  " 

The  lectures  which  cost  Judge  Smith  the  most 
labor,  and  which  would  have  been  most  likely  to  sur- 
vive, as  a  lasting  monument  of  his  ability  and  learn- 
ing, were  never  completed,  nor  indeed  brought  to 
such  a  state  of  forwardness  as  to  be  of  any  service 
to  others.  They  were  on  the  jurisprudence  of  New 
England,  a  subject  in  which  he  had  always  been 
interested,  and  to  which,  as  appears  from  some  of 
his  papers,  he  had  paid  particular  attention  some 
years  before  he  left  the  practice  of  his  profession,  it 
being,  as  he  said  in  his  letter  to  Mr.  Livingston,  his 


LIFE    OF    JUDGE    SMITH.  427 

"  knitting-work  to  put  down  the  New  England  law, 
where  we  have  allowed  it  to  take  the  place  of  the 
English."  In  1816  he  said,  "  I  am  inspired  with 
zeal  to  examine  New  England  histories,  memoirs, 
records,  with  a  view  to  her  jurisprudence."  He 
began  to  prepare  them  in  1836,  and  left  behind  many 
sheets  of  notes  and  references ;  but  only  a  few  pages 
were  written  out  in  full. 

"  I  propose,"  he  said,  "  to  make  some  remarks  on 
the  science  of  jurisprudence.  I  shall  confine  my  ob- 
servations to  the  laws  of  New  England,  as  she  was 
before  the  separation  from  Great  Britain  ;  and  here 
Massachusetts  will  be  chiefly  regarded.  She  is  justly 
entitled  to  this  distinction,  on  account  of  the  priority 
of  her  settlement,  and  still  more  on  account  of  the 
superior  character  of  her  first  and  present  inhabit- 
ants. I  shall  hope  to  be  pardoned,  if  I  indulge 
freely  in  observations  and  remarks  not  strictly,  per- 
haps,  connected  with  the  New  England  jurispru- 
dence. This  science  embraces  the  constitution,  as 
well  as  the  laws  of  the  country  or  place,  and,  limited 
to  New  England,  it  comprehends  the  nature  of  her 
connexion  with,  and  dependence  on,  the  parent 
state.  The  common  law  she  brought  with  her,  as 
her  birthright  ;  and  the  statutes  and  ordinances  she 
framed  for  herself.  Restricted  to  the  narrowest 
limits,  the  subject  is  an  exceeding  broad  one,  almost 
entirely  new,  and  would  call  for  more  time,  more 
study,  and  far  more  talents  than  I  possess. 

"  It  is  impossible  here  not  to  be  reminded  of  the 
loss,  an  irreparable  one  it  must  be  felt  by  all  who 
would  prosecute  these  inquiries,  in  the  death  of  Mr. 


428  LIFE    OF    JUDGE    SMITH. 

Parsons.  He  died  in  1813.  He  had  made  consid- 
erable progress  in  his  studies  before  the  war  with 
Great  Britain.  He  was  highly  favored  in  a  most 
able  instructer,  and  at  his  death  was  certainly  better 
skilled  in  the  New  England  law,  than  any  other  man 
on  either  side  the  Atlantic.  It  is  much  to  be  re- 
gretted that  he  left  behind  him  so  little  of  the  great 
stores  of  the  law  peculiar  to  New  England,  which 
his  diligent  and  discriminating  mind  had  been  col- 
lecting and  digesting  for  nearly  half  a  century.  It 
was  my  good  fortune  to  become  acquainted  with 
this  truly  great  man  and  learned  lawyer  at  the 
time  I  commenced  my  law  studies ;  I  cannot  suffer 
this  occasion  to  pass,  without  expressing  my  heart- 
felt acknowledgments  of  his  kindness.  He  was  ever 
ready  to  assist  such  as  manifested  a  desire  for  in- 
struction. This  part  of  his  character,  I  believe,  has 
not  had  that  justice  done  to  it  which,  in  an  eminent 
degree,  it  deserved.  I  will  not  say  that  Theophilus 
Parsons  was  the  greatest  lawyer  that  ever  lived  ;  but 
I  risk  nothing  in  saying  that  he  knew  more  of  the 
New  England  law,  which  existed  while  we  were 
British  colonies,  than  any  other  man  that  has  lived, 
or  perhaps  that  ever  shall  live.  Some  of  his  learn- 
ing has  been  preserved  in  the  reports  ;  but  much  the 
greater  part  of  his,  and  nearly  all  that  of  the  law- 
yers and  judges  that  went  before  him,  is  now  irre- 
trievably lost  to  the  community. 

"  It  is  a  great  error  to  suppose  the  New  England 
common  law,  properly  so  called,  from  the  advances 
made  in  all  branches  of  knowledge,  is  of  no  import- 
ance in  New  England  at  this  day.  For  what  is  the 


LIFE     OF     JUDGE     SMITH.  429 

common  law  of  which  we  speak  ?  It  is  made  just 
as  the  English  common  law  was  made  ;  a  collection 
of  the  general  customs  and  usages  of  the  commu- 
nity ;  maxims,  principles,  rules  of  action,  founded  in 
reason,  and  found  suitable  to  that  first  condition  of 
society ;  if  not  created  by  the  wisest  and  most 
favored,  sanctioned  and  approved  by  them.  Here, 
every  member  of  society  is  a  legislator  ;  every 
maxim,  which  by  long  usage  acquires  the  force  of 
law,  must  have  been  stated,  opposed,  defended, 
adopted  by  rulers  and  judges,  slowly  and  at  first 
timidly,  but  so  acceptable  that  all  approve.  If  the 
custom  be  of  a  more  doubtful  class,  again  debated, 
criticised,  denied,  but  finally  confirmed  and  estab- 
lished. These  principles,  after  all,  may  not  be  wise 
and  salutary  maxims  ;  but  they  have  all  the  wisdom 
that  the  people  of  all  classes  (every  man  having 
precisely  the  weight  and  influence  he  deserves,)  can 
give  them.  Farther  advances  in  knowledge  and  ex- 
perience may  demonstrate  their  unfitness  and  in- 
utility  ;  then  they  will  be  modified,  and  silently 
changed.  The  legislature  can  abrogate  this  law,  as 
they  can  the  rules  of  their  own  making.  But  it 
would  be  well  for  the  people  if  they  would  first  take 
the  trouble  to  understand  it.  No  man  acquainted 
with  the  common  law  can  look  into  our  statute-book, 
and  not  see  that  the  framers  of  the  statutes,  in  many 
cases,  were  ignorant  that  the  common  law  contained 
precisely  the  same  provision  ;  and  in  many  cases,  a 
provision  different  and  better  adapted  to  the  wants  of 
society.  The  new  law  must  be  repealed  at  the  next 
session,  because  not  congenial  with  the  manners,  ha- 
bits, sentiments,  feelings  and  wants  of  society." 


430  LIFE    OF   JUDGE    SMITH. 

May  not  what  Judge  Smith  has  here  said  of  Judge 
Parsons's  knowledge  of  the  New  England  law,  be 
applied  now  to  himself?  It  is  one  of  the  melan- 
choly thoughts,  connected  with  the  death  of  such 
men,  that  they  carry  with  them  so  much  knowledge 
of  a  kind  that  cannot  be  restored.  Belonging  to  a 
period  reaching  so  far  back,  and  growing  up  under 
influences  which  never  can  exist  again,  they  acquired, 
almost  without  an  effort,  in  the  study  and  practice  of 
their  profession,  information  which  no  research,  after 
they  are  gone,  can  gain  with  anything  of  the  same 
full  understanding. 


CHAPTER   XV.  ' 

1835  — 1838. 

JOURNEY     TO     THE     SOUTH    AND    WEST  LETTERS  

ORPHAN     CHILD  INTERCOURSE     WITH     CHILDREN 

WIT. 

JUDGE  SMITH'S  occupation  at  home  was  much  the 
same  as  it  had  been  for  several  years.  He  saw  more 
company  and  had  in  his  own  house  more  variety  than- 
at  any  time  before.  In  1833,  he  had  taken  William's 
daughter,  then  eight  or  nine  years  old,  into  his  family. 
Besides  her,  he  had  usually  in  his  family  another  little 
girl,  a  niece  of  Mrs.  Smith's ;  and  generally  some 
young  lady  still  farther  advanced,  whom  both  he  and 
his  wife  took  great  pleasure  in  helping  forward  in  her 
education.  There  was  also  Joel  Furber,  of  whose 
short  life  a  sketch  has  already  been  given.  These 
young  people,  of  course,  attracted  others  of  their  own 
age.  There  were  few  houses,  in  which  were  to  be 
found  more  of  the  life  and  merriment  of  youth,  and 
the  youngest  among  them  all,  he  who  certainly  con- 
tributed most  to  their  diversion,  was  the  white-headed 
old  man,  who  had  seen  the  snows  of  nearly  fourscore 


432  LIFE    OF    JUDGE    SMITH. 

winters,  and  who,  more  than  forty  years  before,  had 
been  not  unworthily  associated  with  the  eminent  men 
of  the  nation.  Usually,  when  the  old  man  goes  out, 
a  restraint  is  taken  off;  but  it  was  not  so  there.  The 
loudest  peals  of  laughter  were  an  evidence  of  his 
presence ;  and  during  his  absence  it  was  felt  that  no 
small  part  of  the  animation  of  the  house  was  gone. 

To  Mrs.  Smith.  "  Boston,  Jan.  3,  1836.  I  have 
been  to  the  theatre  two  nights.  '  It 's  a  lie.'  It  is 
not,  but  sober  truth.  At  the  first '  I  was  the  princi- 
pal actor ;  at  the  second,  called  the  Tremont  Theatre, 
Mrs.  Wood  (the  late  Lady  Lenox,)  as  Amina  in  La 
Somnambula,  —  I  was  charmed.  Everybody  says  I 
grow  younger,  and  I  partly  believe  it ;  for  no  opera 
ever  pleased  me  more.  ...  No  man  can  be  in 
Boston  without  thinking  of  money.  Boston  grows 
grander  and  grander.  It  increases  in  everything  but 
humility.  I  verily  think,  at  least  hope,  my  stock  will 
enlarge.  ....  I  have  dissipated  as  little  as  possible ; 
but  this  is  a  tempting  place,  and  I  must  quit  it.  I 
must  overcome  temptation  in  Sterne's  method,  by 
running  away.  You  may  expect  me  Thursday,  and 
loving  home  better  than  ever,  and  chiefly  its  princi- 
pal charm.  Apropos  of  wives, is  soft  and 

gentle  to  his  good  wife.  He  seems  almost  a  new 
man.  How  useful  sorrow  is  in  this  world  of  ours  ! 
May  you  have  none  of  it.  Strange  conclusion  from 
my  premises.  Man  is  a  strange  creature  in  reason- 
ing as  well  as  in  going  to  theatres." 


i  The  Odeon,  formerly  the  Federal-street  Theatre,  \vhere  he  had  been 
giving  a  lecture. 


LIFE    OF    JUDGE    SMITH.  433 

To  Mrs.  Smith.  "Exeter,  April  19,  1836.  'On 
looking  back  for  thirty  years,  I  see  too  many  faults  in 
my  own  life  to  be  mindful  of  the  faults  against  me.' 
Now,  if  you  do  not  apply  this  to  me,  it  will  serve  to 
convince  me  that  I  am  not  humble  enough.  Truly, 
it  is  going  a  little  beyond  me.  I  see  some  faults  of 
my  own  in  the  retrospect,  but  some  also  in  my 
friends,  a  very  few  excepted.  Sir  James  Mackintosh, 
too,  goes  beyond  me  when  he  says,  '  *  *  *  has  a 
distaste  for  me.  I  think  the  worse  of  no  one  for 
such  a  feeling.  I  often  feel  a  distaste  for  myself. 
Quaere  —  should  I  esteem  my  own  character  in  an- 
other person  ? '  Are  you,  my  dear  wife,  as  good  and 
as  humble  as  Sir  J.  M.  ? 

"  You  know  we  did  not  greatly  admire  M.'s  Life 
of  Sir  Thomas  More.  M.'s  son  says,  '  He  wrote  it 
con  amore,  and  has  produced  one  of  the  most  pleas- 
ing and  instructive  pieces  of  biography  in  the  English 
language.  There  are  few  works  in  which  the  moral 
ends  of  biography  are  better  answered,  or  from  which 
the  reader  rises  more  pleased  and  improved.'  If  the 
young  fellow  of  Oxford  is  right,  you  and  I  must 
resign  the  chair  of  criticism.  Are  we  too  fastidious  ? 

"  You  perceive  this  is  the  anniversary  of  Lexing- 
ton battle  —  sixty-one  years  ago.  My  remembrance 
of  the  feelings  of  the  time,  and  even  the  state  of  the 
weather  —  the  beautiful  and  forward  season  —  is  ex- 
tremely vivid.  All  this  proves  two  facts ;  first,  that  I 
am  a  great  patriot,  and,  secondly,  a  close  observer  of 
nature,  and,  I  can  add  with  still  greater  truth,  a  great 
admirer  of  you,  though  you  can  boast  of  little  more 
than  half  the  years  of  this  by-gone  event. 
37 


434  LIFE    OF    JUDGE    SMITH. 

"  I  don't  know  how  it  is,  Elizabeth  ;  but  I  am 
more  regardful  of  health  when  you  are  absent ;  I  am 
more  abstemious  and  take  more  exercise,  and  yet  I 
would  not  have  you  stay  away  on  this  account,  unless 
you  will  engage  to  do  likewise." 

"Wednesday,  6,  A.  M.  Up  at  5 — have  not 
strutted,  but  swept  my  hour  on  the  stage  —  venti- 
lated the  room,  and  am  ready  to  say  good  morning 
to  you  on  your  couch  —  am  about  to  finish  Sir 
James. 

"  I  enjoy  Sir  James  the  less  for  your  absence. 
Your  interruptions  serve  only  to  enhance  the  plea- 
sure. What  is  the  reason  that  there  are  so  few 
books,  which  please  me  so  well  at  the  end  as  at  the 
beginning  ?  Is  it  that  the  author  tires  ?  " 

To  Mrs.  Smith.  "  Saturday  noon,  April  23.  My 
dear  Elizabeth :  Mrs.  W.  says,  <  Write  to  Mrs.  S.,' 
and  you  know  how  readily  I  obey  commands  of  your 
sex.  It  is  my  delight  to  do  their  will.  I  was  cheer- 
ed, an  hour  ago,  on  finding  my  door  open,  and  enter 
Mrs.  Walker.  I  have  read  two  or  three  chapters  to 
her  out  of  Sir  E.  Brydges'  autobiography ;  very  en- 
tertaining. She  has  consented  to  dine  with  me,  so 
that  you  see  I  am  in  a  fair  way  to  be  happy.  I  hope 
that  the  only  cause  which  can  prevent  your  being  so, 
does  not  exist  —  the  suffering  of  your  friends. 

"  It  is  a  fortunate  thing  for  me  that  most  things 

amuse  me.  Mr. entered  last  evening  with  a 

groan  at  the  hall  door,  and  gave  me  an  hour  in  har- 
mony therewith,  and  left  me  very  happy.  ...  I  find 
Sir  E.  B.'s  book  entertaining  ;  am  glad  I  bought  it. 
This  is  just  the  time  I  need  such  refreshment.  I  am 


LIFE    OF    JUDGE    SMITH.  435 

in  the  midst  of  examining  a  knotty  law  case.  It  does 
not  trouble  me ;  but  it  is  well  to  have  good  intervals. 
I  see  a  storm  a  brewing,  but  value  it  not.  Mrs.  W., 
to  whom  I  have  just  read  so  far,  says,  '  What  spirits 
you  have  !  '  Why  not  ?  Heaven  has  been  good  to 
me ;  why  should  I  not  be  cheerful  and  happy  ?  To 
know  that  you  are  so,  would  add  something  to  the 


In  the  summer  of  1836,  Judge  Smith,  with  his 

wife  and  Miss  ,  made  a  journey,  by  way  of 

Washington  and  the  Virginia  Springs,  to  Kentucky 
and  Ohio.  "  At  Washington,"  he  said  in  a  letter  to 
his  friend  and  neighbor,  Dr.  Benjamin  Abbot,  "  I 
saw  a  good  deal  of  the  two  houses  of  congress.  The 
senate  answered  my  expectation  ;  but  I.  H.  had  not 
then  quit.  I  was  made  acquainted,  as  far  as  the  time 
would  allow,  with  most  of  the  members.  I  must  say, 
the  house  of  representatives  fell  below  my  expecta- 
tions, which  certainly  were  not  high.  A  vast  number 
of  the  members  have  the  cacoethes  loquendi  the  nat- 
ural way.  I  am  not  an  enemy  to  good  speeches  ; 
the  most  of  those  I  heard  were  of  an  inferior  quality, 
and  never  did  I  see  so  little  attention.  Indeed,  there 
could  not  be  said  to  be  any  hearer  except  myself, 
and,  if  you  will  pardon  a  bull,  I  could  not  hear. 
This  state  of  things  must  end  in  some  way.  B.'s 
dumb  legislature  is  a  thousand  times  to  be  preferred. 
I  think,  just  at  this  time,  the  house  is  not  in  favor 
with  anybody.  I  have  not  seen  their  friends,  if  they 
have  any. 

"  The  country  is  grand  ;  but  the  government  not 
so  good  as  the  people." 


436  LIFE     OF     JUDGE     SMITH. 

To  J.  H.  Morison,  Washington,  23d  May,  1836. 
"  I  am  bound  for  the  capitol.  It  is  said  there  is  to 
be  a  flourish  of  trumpets  this  morning  in  the  senate  — 
the  trumpeter,  Mr.  Preston,  of  South  Carolina,  and 
the  subject  relating  to  the  independence  of  Texas, 
now  that  she  has  conquered  Santa  Anna.  This  is 
believed  this  morning.  Surely  the  age  of  miracles 
has  not  passed  away.  She  will  soon  be  admitted 
into  the  union.  What,  think  you,  will  be  the  influ- 
ence of  New  England  among  forty  states,  in  1856  ? 
Take  away  Webster  and  one  or  two  others,  and  what 
is  her  influence  now  ? " 

May  25.  "  I  have  been  twice  to  the  president's  — 
like  him.  He  cannot  reason  —  had  an  argument 
upon  instructions.  He  is  all  wrong  —  holds  to  the 
Virginia  doctrine  —  is  unconvinceable.  Probatum 
est ;  [for]  my  arguments  failed." 

Judge  Smith  was  pleased  with  the  attentions  he 
received  from  the  prominent  men  at  Washington  ; 
but  the  most  gratifying  incident  in  his  journey  was  a 
visit  to  Mr.  Madison.  When  in  congress  together, 
and  afterwards  through  the  active  part  of  their  politi- 
cal lives,  they  had  taken  different  sides,  and  were 
strongly  opposed  to  each  other.  For  a  time,  at  the 
close  of  Washington's,  and  the  commencement  of 
Adams's  administration,  their  political  feelings  were 
such,  that  there  was  no  personal  intercourse  between 
them.  But  in  the  latter  part  of  his  life,  Judge  Smith 
always  spoke  of  Mr.  Madison  as  a  man  of  great  mo- 
desty, learning,  ability  and  moral  worth.  He  believed 
that  Mr.  Madison  had  been  at  one  time  too  much 
under  the  influence  of  Mr.  Jefferson,  whom  he  never 


LIFE     OF     JUDGE     SMITH.  437 

ceased  to  consider  as  an  able,  but  crafty,  visionary, 
unscrupulous  politician.  They  had  not  met  for  nearly 
forty  years. 

At  Orange  court-house,  Saturday,  May  28,  "  Af- 
ter much  difficulty  procured  horse-cart,  two  dray 
horses,  passenger  and  driver,  each  sitting  on  a  kitchen 
chair,  to  carry  me  over  the  road  to  Charlottesville, 
four  miles,  and  then  one  mile  to  Mr.  Madison's,  — 
passed  through  gate,  wheat  and  rye  each  side,  to 
front  of  lawn  —  house  showy — grand  pillars  in  pro- 
jection—  introduced  myself  to  Mr.  Todd,  Mrs.  M.'s 
son.  He  said  his  mother  would  be  glad  to  see  me, 
and  so  it  proved.  She  gave  me  a  friendly  and  hearty 
welcome.  We  went  back  forty  years  ;  she  remem- 
bered me  as  much  as  I  did  her.  Mr.  M.  had  been 
very  ill  —  too  much  so  to  see  company,  but  said  [he] 
would  see  me  —  found  him  on  couch  and  much  as 
Mr.  V.  B.  had  described  him  to  me  —  no  body  — 
all  soul  —  powers  of  mind  good  —  memory  —  aston- 
ished to  find  him  so  much  like  forty-five  years  ago  in 
the  tones  of  his  voice,  though  more  feeble- — turn  of 
expression  —  talked  well  —  said,  glad'  to  see  me  — 
he  and  Mrs.  M.  had  always  noted  the  newspaper  ac- 
counts of  me,  and  had  the  kindest  feelings  —  had 
always  considered  me  as  acting  from  principle,  and 
therefore  always  cherished  towards  me  the  first  kind 
and  friendly  feelings.  I  frequently  proposed  to  with- 
draw, but  he  expressed  a  desire  to  detain  me  — 
wished  to.  hear  me  talk.  I  reminded  him  of  our  first 
acquaintance,  when  [I]  was  his  scholar,  courting  his 
conversations,  and  thanking  for  his  kindness.  Though 
he  does  not  talk  politics,  he  expresses  opinions  on 
37* 


438  LIFE     OF     JUDGE     SMITH. 

political  subjects  and  men,  but  with  the  caution  and 
mildness  always  natural  to  him. 

"  They  urged  me  to  stay  to  dinner  —  three  —  but 
I  excused  myself,  and  took  leave  after  two  hours. 
He  desired  his  respects  to  Mrs.  S.,  and  regretted,  as 

did  Mrs.  M.,  she  could  not  come He  spoke 

highly  of  Mr.  W.  and  Clay." 

Mrs.  Smith,  in  her  journal,  adds  to  these  minutes, 
which  were  hastily  taken  on  the  journey  ;  "  Judge 
Smith  returned  delighted  with  his  call  —  found  Mrs. 
Madison  still  handsome,  hospitable  and  elegant,  and 
Mr.  M.,  though  much  emaciated,  weak,  sick  and  lying 
on  a  couch,  still  all  himself  in  memory  and  mind. 
J.  S.  spoke  of  the  Lyceum  lectures  he  had  been  giv- 
ing ;  Mr.  M.  intimated  that  they  would  not  only  be 
useful  to  those  who  heard  them  ;  but  likewise  serve 
as  a  pabulum  to  his  own  mind.  He  was  so  thought- 
ful as  to  offer  letters  of  introduction  to  Mr.  Levy,  the 
present  possessor  of  Mr.  Jefferson's  Monticello,  and 
to  Professor  Tucker  of  the  university  of  Virginia. 
These  letters  were  written  by  Colonel  Todd,  and 
then  brought  to  him  and  received  his  approba- 
tion." 

From  Judge  Smith's  Diary,  9th  of  June.  "  A  few 
miles  after  starting,  we  found  ourselves  stuck  fast  in 
a  slough  on  the  side  of  a  hill.  The  men  passengers 
got  out  and  did  what  they  could.  Mr.  H.  escorted 
the  ladies  a  mile  or  more  to  the  post-office.  I  re- 
mained much  exhausted  and  sick  in  the  stage.  It 
started  and  in  a  very  few  rods  capsized,  and  I  was 
buried  in  the  ruins,  considerably  bruised  in  my  left 
shoulder  and  head.  I  was  soon  dug  out,  and  ac- 


LIFE    OF   JUDGE    SMITH.  439 

quired  much  renown  for  my  silence  and  patience,  two 
virtues  as  doubtful  as  any  I  boast  of." 

To  Mrs.  Walker.  "White  Sulphur  Springs, 
Greenbrier  county,  Virginia,  June  16,  1836.  My 
dearest  Sarah  :  You  were  always  dear,  and  now  in 
the  midst  of  the  Alleghanies  are  dearer  than  ever. 
....  The  higher  we  ascend,  the  better  we  love  one 
another.  So  be  it ;  for  this  is  the  greatest  earthly 
good.  Did  I  inform  you  at  Washington,  that,  by 
the  advice  of  Mr.  Clay  and  other  wise  men,  we  had 
abandoned  the  Mississippi.  I  limited  our  tour  to 
Lexington,  Frankfort,  Louisville  and  Indiana,  return- 
ing through  Ohio. 

"  I  expect  little  from  the  waters  of  these  famous 
springs  ;  but  the  air  is  delightful  in  these  regions,  and 
the  exercise  a  little  more  than  we  could  desire.  I 
cannot  describe  the  roads  better  than  by  saying,  it  has 
rained  the  last  twenty  days,  and  our  way,  which  lies 
over  rocky  hills  and  mountains,  is  the  passage  for  the 
torrent  —  no  bridges  —  the  soil  (in  all  not  mountain)  is 
red  clay,  and  might  now  be  moulded  into  bricks  with- 
out any  change  of  color.  Our  team  can  neither 
draw  us  up  the  mountains,  nor  out  of  the  sloughs ; 
but  the  views  are  grand  —  everything  new  and  sub- 
lime. We  do  not  regret  our  fatigues  —  are  always 
ready  to  encounter  fresh  ones.  We  are  constantly 
making  new  and  often  agreeable  acquaintances,  and 
are  laying  up  food  '  for  many  years  to  come.'  How 
like  this  is  to  the  language  of  the  man  that  built  the 
greater  barns  !  The  conclusion  must  apply  almost 
literally  to  some  of  us  ;  but  I  hope  not  to  all.  I 
wish  you  were  with  us  to  help  us  to  enjoy.  How  it 


440  LIFE     OF     JUDGE     SMITH. 

would  multiply  all  our  pleasures  !  .  .  .  .  I  have  no 
painful  anxieties  about  home,  not  even  about  our 
friends  in  old  Exeter;  they  are  all  safe  under  the 
keeping  of  the  great  and  good  Keeper." 

In  passing  through  Virginia,  Judge  Smith's  atten- 
tion was  of  course  often  called  to  the  subject  of  slav- 
ery. "  Met  Mr.  P.,  of  Georgia.  He  is  right  on  the 
slave  question,  —  says  they  are  well  treated  and 
happy,  and  better  every  way  than  our  New  England 
lower  order,  and  as  capable  as  whites  of  intellectual 
cultivation.  Still  he  is  an  enemy  of  slavery,  and 
more  so  than  the  New  England  men,  who  come  from 
the  north  and  work  them  harder  than  the  natives  — 
wishes  the  New  England  abolitionists  would  point  out 
a  cure  for  the  evil." 

From  a  letter  to  Dr.  Abbot.  "  Slavery  here  as- 
sumes its  most  favorable  aspect.  I  do  not  say  it  is 
charming  and  delightful,  but  it  is  extremely  mild.  I 
have  heard  many  Virginians  regret  that  Dr.  Channing 
could  not  spend  a  year  in  the  ancient  dominion.  They 
admire  the  man,  but  not  his  book  on  slavery.  I  agree 
with  them  in  both."  Dr.  Channing  had  spent  a  year 
in  the  "  ancient  dominion,"  and  remembered  all  his 
life  the  kindness  which  he  had  received  from  slave- 
holders ;  but  neither  this,  nor  the  mild  treatment  of 
the  slaves,  could  close  his  eyes  to  the  monstrous  injus- 
tice of  buying  and  selling  human  beings  who  had  been 
guilty  of  no  crime. 

•  Judge  Smith  returned  from  his  journey  in  good 
health.  "  I  cannot  but  think,"  he  said,  "  that  I  have 
gained  some  knowledge  in  my  tour,  which,  if  it  do 
not  profit  others,  will  increase  my  own  enjoyments. 


LIFE    OF    JUDGE    SMITH.  441 

This  is  selfish ;  but  does  any  one  wonder  that  old 
men  are  so  ?  The  world  are  much  disposed  to  con- 
sider them  as  already  out  of  it." 

Private  letters  are  almost  the  only  memorials  of  the 
next  year. 

To  Miss  Lowe.  "  Exeter,  August  1,  1836.  Your 
letter,  my  dear  Mary,  was  a  very  good  one,  both  in 
matter  and  manner.  I  engage,  if  you  persevere,  that 
you  will  soon  be  among  the  best  letter  writers.  But 
care  and  pains  are  indispensable.  I  know  these  are 
not  pleasant  to  a  girl  just  entered  her  teens  ;  but  I 
know,  also,  that  the  fruits  are  excellent.  '  Deus  ipse 
hand  facilem  esse  viam  voluit '  —  you  are  a  Latin 
scholar,  you  know.  Take  my  word  for  it,  my  dear 
Mary,  you  will  in  due  time  have  your  reward.  I 
take  a  great  interest  in  your  success  in  life,  and  espe- 
cially at  this  period,  when  you  are  forming  a  charac- 
ter, which  may  last  as  long  as  you  last  —  longer  than 
I  shall  live  to  witness  it.  I  am  sure  you  have  the 
capabilities,  and  need  nothing  but  your  own  exer- 
tions. At  your  time  of  life  I  made  many  mistakes, 
and  wasted  much  time,  but  idleness  and  inattention 
were  not  among  the  number  of  my  youthful  errors. 
I  was  happy  in  a  daughter,  who  was  in  these  things 
all  I  desired.  I  know  full  well  the  import  of  the 
words,  when  I  say  that  it  is  in  your  power  to  make 
your  parents  exceedingly  happy,  by  merely  making  a 
good  use  of  your  time  and  of  your  talents,  which  are 
very  good  ;  but  they  will  avail  you  nothing  without 
cultivation.  Your  heart  is  also,  humanly  speaking, 
good  ;  but  the  best  mind  and  the  best  heart  will  prove 
no  blessing,  unless  you  do  your  part.  I  do  not  mean 


442  LIFE    OF     JUDGE     SMITH. 

to  flatter  you,  Mary,  but  rather  to  encourage  you  in 
the  right  improvement  of  your  time  and  talents.  The 
path  of  life  is  not  all  strewed  with  roses ;  there  are 
thorns  and  discouragements  and  sacrifices  to  be  made, 
but  there  is  also  abundance  of  pleasures  to  be  en- 
joyed—  great  and  enduring  pleasures.  I  sincerely 
wish  you  a  full  share  of  these." 

To  Miss  Ellen  Smith.  "Exeter,  November  3, 
1836,  Thursday  evening.  I  was  delighted  to  find, 
by  your  letter,  that  your  father  was  well,  and  re- 
quired no  waiting  on.  It  has  always  been  my  opin- 
ion, and  experience  has  served  to  confirm  it,  that  old 
people  are  naturally  (I  hope  not  necessarily)  disa- 
greeable. Everybody  that  can,  shuns  them  ;  those 
who  owe  them  duties  must  pay  them.  But  surely 
what  is  done  from  a  sense  of  obligation  must  be  in- 
finitely less  agreeable  to  the  receiver,  than  what  flows 
from  love  and  the  kindly  affections.  How  strong, 
then,  the  motives  not  to  be  over-exacting,  and  to  draw 
as  little  as  possible  on  the  fund  of  filial  duty,  but 
rather  to  deserve  more  than  they  are  willing  to  re- 
ceive even  from  children ! 

"Providence  has  wisely  ordered,  that  old  people 
should  have  abundant  leisure  to  make  themselves 
amiable.  They  have  little  else  to  do.  I  have,  be- 
sides, little  doubt  that  the  bienseances  as  well  as  the 
moral  affections  are  cultivable,  that  any  man  may 
grow  in  the  love-inspiring  virtues,  as  well  as  in  the 
moral. 

"  It  gave  me  great  pleasure  to  see  that  your  good 
father's  bodily  and  mental  powers  were  so  very  good. 
I  can  hardly  give  him  credit  for  sincerity  in  the  esti- 


LIFE    OF    JUDGE    SMITH.  443 

mate  he  puts  upon  them.  This  over-low  estimate  — 
not  very  common  with  the  Smiths  —  cannot  surely 
have  been  intended  as  an  apology  for  indolence, 
making  no  efforts  to  improve  !  Human  nature  is  said 
to  be  too  prone  to  indulgence.  Age,  then,  may  be 
suspected.  But  whatever  our  powers  now  may  be, 
they  surely  will  diminish  by  non  user ;  such  is  the 
order  of  Providence.  In  all  this,  I  must  be  under- 
stood as  addressing  you,  who  I  hope  will  one  day  be 
old.  It  is  true  you  are  very  well  now,  and  I  love 
you  dearly,  but  at  the  same  time  I  have  no  objection 
to  your  being  still  better,  and  at  finding  myself 
obliged  to  love  and  esteem  you  still  more. 

"  I  am  quite  well,  and  hope  you  will  keep  me  so 
by  writing  us  often ;  and  when  we  are  tired  of  that, 
visiting  us  and  abiding  with  us,  till  we  grow  heartily 
tired  of  each  other.  Till  then  I  am  sincerely  yours." 

To  Miss  Lowe.  «  Exeter,  April  20,  1837.  We 
have  been  just  reading  in  Sparks's  American  Biogra- 
phy, (Vol.  VII.)  Miss  Sedgwick's  Memoir  of  Lucre- 
tia  Maria  Davidson,  who  died  when  a  little  older  than 
you  are.  She  had  great  talents,  but  with  less  would 
have  been  loved  by  all  who  knew  her.  We  intend 
Jane  shall  read  it,  and  be  what  she  was ;  but  post- 
pone it  till  you  come,  that  we  may  have  two  Miss 
Davidsons  instead  of  one.  There  is  a  fine  young 
man  just  come  to  the  academy  from  Buffalo.  He 
looks  a  little  like  a  certain  relative  of  mine  about  his 
own  age.  I  know  well  this  will  have  no  influence 
in  hastening  your  return ;  but  I  am  sure  you  will 
like  him.  His  father  places  him  in  some  measure 
under  my  care,  and  I  want  some  discreet  person  to 
aid  me." 


444  LIFE    OF    JUDGE    SMITH. 

To  Miss  Hammond.  "May  6,  1837.  How  I 
long  to  have  last  autumn  return,  and  you  in  your  old 
seat !  I  think  I  may  then  defy  any  one  to  show  a 
happier  circle  —  a  small  one  indeed,  but  kindred 
spirits,  loving  and  being  loved.  Earth  can  give  no 
more;  indeed,  this  must  be  one  of  the  joys  of 
heaven." 

On  the  14th  of  July,  1837,  new  interest  in  life  was 
given  to  Judge  Smith  by  the  birth  of  a  son  to  bear 
his  name.1  "  At  this  moment,"  he  said  in  writing  to 
a  friend,  "  there  is  not  a  speck  in  my  horizon,  and  I 
only  want  some  dear  friend,  by  which  1  mean  you, 
to  rejoice  with  me." 

To  Miss  Ellen  Smith.  "  Exeter,  30th  November, 
1837.  My  dearest  Ellen  :  When  I  sought  your  cor- 
respondence and  friendship,  (for  uncle  and  niece  are 
nothing,)  I  did  not  know  their  value.  Perhaps  as 
many  on  full  knowledge  prove  better,  as  those  that 
prove  worse  on  trial.  This  is  a  good  view  of  human 
nature,  and  I  cherish  it.  Among  my  blessings,  (and 
they  are  not  few  or  small,)  I  reckon  you,  my  dear  Ellen. 
You  must  live  and  be  happy  as  long  as  I  live,  and  as 
much  longer  as  it  may  please  God.  I  was  not  quite 
prepared  for  the  news  of  S.  M.'s  *  death  ;  but  for  some 
time  I  have  not  thought  he  would  continue  long. 
The  chief  value  of  his  life  was  for  his  daughters. 


1  From  the  Family  Record,  in  the  hand-writing  of  J.  S.  "  Friday, 
July  14,  1837,  1  P.  M.,  filius  natus  fuit,  quem  Deus  a  malo  defendat ; 
baptiz  :  a  Rev.  J.  Hurd,  22d  October,  1837,  nomine  Jeremis,  anglice 
Jeremiah." 

*  Judge  Smith's  brother-in-law,  Samuel  Morison,  father  of  three  deaf 
and  dumb  daughters. 


LIFE     OF     JUDGE     SMITH.  445 

They  particularly  need  a  father  or  brother.  Their 
friends  must  supply  their  places.  I  wish  I  was  nearer 
to  them.  Living  in  the  village,  as  they  must,  it  is  indis- 
pensable that  some  trusty  person  should  provide  them 
fuel  and  provisions.  I  am  sorry,  my  dear  Ellen,  for 
this  new  draft  on  your  benevolence.  I  know  nobody 
whose  society  will  do  them  so  much  good  as  yours 
and  Nancy's,  and  nobody  more  disposed  to  contribute 
to  the  happiness  of  others.  I  almost  envy  two  such 
fellow-laborers  in  making  others  happy.  A  blessing 
must  attend  those  who  serve  such  pure-minded  and 
excellent  girls.  Their  mother  will  look  down  from 
heaven  her  thanks.  My  Elizabeth  regrets  the  dis- 
tance between  her  and  her  favorite  nieces.  When 
the  pleasant  season  comes,  she  will  hope  for  a  long 
visit  from  them  —  their  comforters  and  helpers. 

"  Elizabeth  and  Jeremiah  are  as  you  would  wish. 
The  boy  is  a  source  of  pleasure  to  me  far  exceeding 
my  anticipations.  I  pray  heaven  it  may  continue. 
You  know  I  am  not  one  of  those  whose  future 
prospects  are  gloomy.  '  Enjoy  the  good  the  gods 
provide  you,'  is  a  good  Christian  as  well  as  heathen 
maxim.' " 

To  Miss  Hammond,  19th  December,  1837.  "  I 
am  engaged  in  my  intervals  of  leisure,  in  reading 
Southey's  Cowper  ;  and  admire  the  man  and  the 
work  more  than  ever.  When  the  pleasant  season 
comes,  you  must  come,  my  dear  Sarah  ;  '  all  that  is 
here  is  thine,  together  with  the  hearts  of  those  who 
dwell  here.'  We  will  read  Cowper's  Life  and  Task 
together,  and  meditate  upon  them  till  we  three  be- 
come as  good  as  he.  I  did  not  intend  to  be  guilty 
38 


446  LIFE     OF     JUDGE     SMITH. 

of  rhyme,  but  to  deal  in  sober  truth,  which  is  in  har- 
mony with  all  my  feelings  at  this  moment." 

6th  March,  1838.  "  I  have  continued  reading 
Cowper,  and  admire  him  more  and  more.  His  let- 
ters—  I  have  read  them  all  —  compare  well  with 
Horace  Walpole's.1  If  this  were  fifty  years  ago,  I 
should  almost  hope  to  imbibe  some  of  his  spirit. 
Don't  think  I  mean  his  morbid  distemperature  of 
mind  ;  a  despairing  frame  of  mind  is  of  all  things  the 
most  remote  from  my  nature.  I  am  always,  if  not 
happy,  at  least  free  from  the  glooms,  see  things  in 
their  best  light,  and  when  trouble  comes,  as  come  it 
will,  bear  it  the  best  way  I  can.  Cowper  was,  by 
nature,  gay  and  lively,  willing  and  capable  of  min- 
gling in  the  joys  and  sorrows  of  his  associates  ;  but 
there  may  have  been  at  the  bottom  a  little  of  the 
leaven  of  insanity,  and  it  was  sadly  inflamed  by  his 
religious  creed,  and  the  training  under  his  ghostly 
director.  I  admire  his  letters  more  than  his  poetry, 
though  some  of  that  is  very  good  ;  and  it  adds  much 
to  my  enjoyment  of  Cowper,  that  Elizabeth  goes  with 
me,  and  beyond  me.  She  has  something  of  his  or- 
thodox faith,  whereof  I  have  none." 

In  December,  1838,  there  was  received  into 
Judge  Smith's  family  an  orphan  child,  and,  says 
Mrs.  Smith,  "  the  recollection  of  his  patience  and 
gentleness  towards  that  little  girl,  are  redolent  of  the 
odor  of  perfect  charity.  She  was  not  quite  four 
years  old ;  the  delicacy  of  her  health  made  it  expedi- 


i  To  his  niece,  J.  S.  says:  "C.'s  letters  I  rank  next  to  Horace  Wai- 
pole's  ;  that  is,  second  in  the  world  of  letters." 


LIFE     OF     JUDGE     SMITH.  447 

ent  that  she  should  sleep  where  there  was  a  fire,  and 
from  a  dislike  to  inflict  on  domestics  the  labors  grow- 
ing out  of  a  deed  of  charity,  she  was  finally  estab- 
lished in  Judge  Smith's  chamber.  She  was  restless, 
and  a  very  bad  sleeper  ;  but  at  no  time  did  he  com- 
plain of  this  annoyance,  and  never  once  did  he  pro- 
pose her  removal  to  another  room.  On  the  contrary, 
the  sight  of  her  seemed  to  double  the  enjoyment  of 
his  own  comforts.  When  he  saw  her  put  to  bed  at 
night  in  her  comfortable  flannel  night-gown,  or  dressed 
in  the  morning  before  the  cheering  wood  fire,  he 
would  look  at  her  with  so  much  pleasure,  and  exclaim 
again  and  again,  'a  brand  snatched  from  the  burning, 
a  brand  snatched  from  the  burning ! '  Her  father 
having  died  of  delirium  tremens,  and  her  mother  be- 
ing a  common  street  drunkard  and  beggar,  it  was 
hoped  that  early  culture  and  freedom  from  tempta- 
tion would  keep  off*  this  dreadful  taint ;  and  she  al- 
ready gives  promise  of  being  a  useful,  energetic  and 
honest  domestic." 

Judge  Smith  had  quite  an  uncommon  power  of 
interesting  children.  A  lady,  at  whose  house  he  was, 
asked  her  daughter,  about  three  years  old,  to  go  to 
another  room  for  her  father.  "  I  will,"  she  said, 
"  when  Judge  Smith  is  not  here."  A  little  fellow, 
just  beginning  to  talk,  was  so  entertained  by  him  that 
every  time  he  paused,  the  child  called  out,  "  Man  talk 
more,  man  talk  more."  Another  little  girl  with 
whom  he  had  been  playing  and  talking  some  time, 
being  asked  to  go  out  with  her  mother,  said  "  No, 
no  ;  I  want  to  stay  here.  I  want  to  hear  what  he 
will  say  next."  In  his  talk  and  by  his  gestures,  tones 


448  LIFE     OF     JUDGE     SMITH. 

and  actions,  he  presented  the  most  ludicrous  combina- 
tions and  contrasts.  But  it  was  only  those  children, 
who  had  a  quick  perception  of  the  humorous,  and 
who  could  distinguish  as  by  instinct,  what  was  said 
in  jest  from  that  which  was  said  in  earnest,  who  could 
understand  him.  I  remember  the  utter  astonishment 
with  which  he  was  listened  to  by  a  little  boy  who  had 
been  brought  up  in  the  literal  observance  of  the  truth, 
and  whose  moral  sensibilities  were  of  course  unfavor- 
ably affected  by  such  conversation. 

His  intercourse  with  the  young  generally  had  no 
tendency  to  increase  their  reverence  for  conventional 
forms,  or  the  idols  of  society.  And  occasionally  his 
manner  of  speaking  of  the  best  observances  and  men, 
was  such  as  to  throw  an  air  of  ridicule  round  them 
in  the  minds  of  his  associates,  before  they  had 
learned,  in  his  more  serious  moments,  or  from  a 
more  intimate  acquaintance,  how  deep  and  real 
was  his  respect  for  them.  This  trait,  which,  from 
its  liability  to  be  misunderstood  and  perverted,  is 
not  to  be  recommended  for  imitation,  has  belonged 
as  a  characteristic  to  some  not  only  of  the  most  up- 
right, but  the  most  devout  of  men.  No  one  ever 
possessed  it  in  a  greater  extent  than  Thomas  Fuller, 
the  author  of  the  "  Worthies  of  England,"  and  with 
all  his  levity  of  speech,  nay,  through  it  all,  where 
shall  we  find  a  more  sincere  and  beautiful  spirit  of 
religious  reverence,  a  more  truthful  and  hearty  respect 
for  the  good  men  of  his  own  and  all  former  times  ? 
The  language  of  Sir  Thomas  More  upon  the  scaffold, 
must  savor  of  irreverence  and  impiety  to  those  who 
can  see  religion  only  in  solemn  looks  and  tones  ;  but 


LIFE     OF     JUDGE     SMITH.  449 

where  was  there  ever  a  more  devout  or  devoted 
spirit  ?  And  old  Hugh  Latimer,  who  could  not  help 
punning  as  they  were  preparing  him  for  the  stake, 
found  no  subject  too  sacred  for  the  cheerful,  mirthful 
and  humorous  flow  of  his  devout  and  Christian  soul. 
It  might  have  been  irreverence  in  another  to  talk 
as  these  men  talked,  under  circumstances  of  such 
awful  solemnity  ;  but  in  them  it  was  only  the  exercise 
of  a  gift,  which  they  had  received  from  God,  and 
which  they  rejoiced  to  employ  in  his  service.  No 
one,  I  think,  can  read  Izaak  Walton's  Lives,  or  gain 
admittance  into  the  sanctuary  of  George  Herbert's 
poetry,  without  seeing  how  much  of  that  wit,  which 
some  would  condemn  as  levity,  may  enter  into  the 
conversation  of  the  most  holy  men,  and  how  grace- 
fully it  may  minister  even  at  the  altar  of  their  devo- 
tions. 

But  there  is  no  gift  of  the  mind  which,  especially 
in  its  connexion  with  any  religious  duty,  is  more  a 
stumbling-block  to  some  well-meaning,  and  even  sen- 
sible men.  Religion  among  us  has  been  taught  to 
clothe  herself  in  a  sanctimonious  garb,  rather  than  in 
the  beauty  of  holiness  ;  social  respectability  walks  on 
stilts,  and  unless  treated  with  a  formal  respect,  tum- 
bles to  the  ground.  We  are,  with  the  exception  of 
owls  and  monkeys,  the  most  serious  people  on  the 
face  of  the  globe.  Our  very  amusements  have  an  air 
of  seriousness,  and,  as  on  the  Athenian  coin,  the  im- 
age of  an  owl  is  required  to  give  us  currency  in  soci- 
ety. This  owlish  wisdom  and  solemnity,  with  all  the 
empty  pretensions  that  are  sustained  by  them,  Judge 
Smith  regarded  with  aversion  and  contempt.  It  was 
38* 


450  LIFE     OF     JUDGE     SMITH. 

in  reference  to  them  that  he  said,  "  I  know  the  world, 
and  despise  it.  I  say  this  not  from  pique  ;  for  I 
have  personally  no  complaints  to  make  ;  but  from 
conviction  that  it  is  just  and  merited."  "  One  thing  I 
must  confess,  I  have  now  in  my  old  age  less  deference 
for  the  opinion  of  others  than  I  had  in  earlier  life ; 
not  that  I  think  better  of  my  own  wisdom,  but  less 
of  that  of  others  ;  I  do  not  think  more  of  myself,  but 
more  for  myself."  There  was  no  way  in  which  he 
so  much  exercised  the  keenness  of  his  wit,  as  in  ex- 
posing the  foolish  claims  to  distinction,  (whether  for 
family,  wealth,  learning  or  station,)  that  men  are  con- 
stantly setting  up.  It  was  his  especial  delight  to  pull 
off  the  masks  which  hide  so  much  emptiness  and 
vanity.  At  the  same  time  he  was  no  Cynic,  nor  did 
he  doubt  the  existence  in  the  world  of  high  attain- 
ments, and  great  and  noble  qualities.  He  was  quick 
to  recognize,  and  glad  to  acknowledge  and  respect 
them.  The  innocence  of  childhood,  the  purity  and 
confiding  tenderness  of  woman,  the  manly  virtues 
which  dignify  the  statesman,  and  still  more,  the  hum- 
ble.graces  which  adorn  the  Christian's  life,  were  sub- 
jects on  which  he  delighted  to  dwell,  not  as  abstrac- 
tions, nor. as  the  product  only  of  a  former  age,  but  as 
qualities  which  he  had  seen  and  known,  and  which 
were  still  to  be  found  among  men.  No  one  could 
be  less  a  misanthrope,  or  farther  from  cherishing  that 
barren  skepticism  incarnated  in  Voltaire,  which  grins 
at  human  virtue,  and  withers  the  soul  in  which  it 
dwells.  Nor  was  he  like  Goethe,  in  whose  clear  and 
passionless  mind  the  follies,  vanities,  hopes,  virtues, 
vices  and  crimes  of  man  may  see  themselves  as  in  a 


LIFE     OF     JUDGE     SMITH.  451 

glass,  which  continues  itself  untouched  by  sympathy 
for  human  weakness  or  suffering,  with  no  yearning 
for  human  affection,  or  longing  for  a  divine  love.  He 
was  however,  almost  entirely  free  from  anxiety,  and 
it  might  probably  be  said  with  truth  that  during  the 
last  twenty  years  of  his  life,  he  never  lost  an  hour's 
sleep  from  the  apprehension  of  evil,  whether  of  a 
public  or  private  nature. 


CHAPTER   XVI. 

1838  —  1839. 

JUDGE  SMITH'S  OLD  AGE  —  YOUTHFULNESS  OF  FEEL- 
ING  HABIT  OF  COMPARING  THE  PAST  AND  PRESENT 

INTEREST    IN    NEW    BOOKS  ;     IN    THE    YOUNG  J     IN 

EDUCATION  INTERCOURSE     WITH     YOUNG     LADIES 

LETTER    TO    MISS  ROSS. 

JUDGE  SMITH  had  now  entered  his  eightieth  year. 
For  seven  or  eight  years  after  he  left  the  bar,  his 
"  crazy  machine,"  as  he  called  his  body,  had  been 
steadily  mending,  and,  till  after  the  lapse  of  nineteen 
years,  his  constant  good  health  was  interrupted  by 
fewer  ill  turns  than  during  any  period  of  his  active 
life.  His  mind  had  lost  nothing  of  its  strength,  nor 
his  feelings  anything  of  their  elasticity  and  freshness. 
His  eye  kindled  as  brightly,  his  humor  played  as 
sportively,  his  sense  of  enjoyment  was  as  keen,  and 
his  power  of  imparting  it  as  ready  as  in  the  prime  of 
his  manhood.  His  nature,  disciplined  by  suffering, 
and  then  cheered  by  an  unlocked  for  amount  of  hap- 
piness, had  been  greatly  softened  ;  and  his  passions, 
instead  of  subsiding,  as  they  too  often  do,  into  the 


LIFE    OF    JUDGE    SMITH.  453 

fretfulness  of  an  imbecile  and  comfortless  old  age, 
were  gradually  transmuted  into  affections  which  grew 
more  pure  and  confiding  as  he  approached  his  end. 
In  fact,  as  was  said  of  another,  "  he  never  deterio- 
rated ;  like  the  setting  sun,  when  his  course  was 
over,  he  departed  in  full  majesty." 

He  undoubtedly  owed  much  to  his  natural  temper- 
ament and  constitution,  but  far  more  to  the  spirit  and 
habits  which  he  had  taken  so  much  pains  to  culti- 
vate. As  he  always  woke  bright  because  he  went  to 
sleep  bright,  so  his  fresh  and  joyous  old  age  was  but 
the  product  of  what  had  gone  before.  First  and 
greatest  among  the  sources  of  happiness  which  he 
had  cherished,  was  his  unwavering  religious  trust. 
"  Surely,"  he  said,  "  people  really  and  truly  under  the 
influence  of  rational  principles  of  religion,  must  be 
happy.  Some  people's  religion  fails  to  regulate  their 
passions  and  affections.  It  does  not  produce  all  its 
good  fruits  ;  it  is  not  quite  practical  enough."  In  a 
letter  to  his  wife,  then  absent  from  home,  he  says, 
"  I  am  lonely  because  reading  (just  now)  engages  my 
mind  and  heart  less  than  in  days  of  yore.  I  shall  re- 
joice to  see  dear  Ellen,  but  have  no  ground  to  ex- 
pect her.  Sometimes  the  best  things  come  unexpect- 
edly upon  us.  1  think  my  forte  is  taking  patiently 
whatever  comes,  and  bearing  well  inevitable  evils. 
They  are  then  less  evils,  and  may  even  prove  bles- 
sings in  disguise,  and  all  sorts  of  blessings  are  wel- 
come. Do  not  shorten  your  stay  on  our  account. 
Remain  as  long  as  you  are  sure  you  soften  pain  or 
confer  pleasure,  and  be  sure  to  come  to  us  in  good 
health." 


454  LIFE    OF    JUDGE    SMITH. 

Writing  from  Boston,  he  says,  "I  have  suffered 
nothing  but  pleasure.  My  taste  for  the  great  has, 
and  my  love  for  the  good  has  not,  diminished ;  so 
you  may  safely  trust  me  abroad  for  a  few  days. 
The  day  is  eminently  delightful ;  I  hope  you  enjoy 
it  Is  it  not  criminal  to  suffer  the  good  things  of 
heaven  to  fail  of  producing  the  happiness  intended  ? 
All  this  only  proves  that  my  feelings  at  this  moment 
are  of  the  pleasurable  sort.  I  wish  they  were  trans- 
ferable ;  then  yours  should  be  at  least  in  equilibrio." 
These  are  extracts  taken  almost  at  random  from  his 
letters,  to  show  the  contented,  and  (may  I  not  say) 
the  Christian  spirit,  that  ran  through  his  life,  and 
which,  by  its  quiet  cheerfulness,  protected  him  not 
less  from  the  little  annoyances,  than  from  the  great 
calamities  which  he  had  known. 

As  an  old  man,  he  was  not  exacting  or  complain- 
ing. He  had  had  his  day,  and  was  willing  to  be  set 
aside.  "  It  is  not  easy,"  he  said,  "  to  deal  with  two 
generations  of  men.  Sufficient  for  one  man  is  one 
generation.  How  rarely  an  eminent  statesman,  lawyer 
or  politician,  maintains  his  high  standing  beyond 
thirty  years !  Why  do  we  blame  the  world  for 
turning  old  age  and  infirmity  adrift,  and  retaining 
the  young  and  the  active,  who  can  serve  them 
better  ?  "  "  How  natural  that  the  old  should  not  be 
beloved  !  They  are  every  day  gradually  withdrawing 
their  confidence,  and  it  is  confidence,  unsuspecting 
confidence,  which  begets  love."  Quoting  from  Lady 
Mary  Wortley  Montague  the  words,  "  I  don't  know 
how  I  look,  as  it  is  eleven  years  since  I  saw  my  figure 
in  the  glass,  and  the  last  reflection  was,  so  disagreed- 


LIFE    OF    JUDGE    SMITH.  455 

ble,  that  T  resolved  to  spare  myself  such  mortifications 
for  the  future,  and  shall  continue  that  resolution  to 
my  life's  end,"  he  adds,  "  Strange  that  a  woman  of 
sixty-eight  should  be  ashamed  to  show  a  wrinkled 
face.  We  are  to  avoid  the  infirmities  of  age,  but  not 
be  mortified  at  them."  "  Where,"  he  asked  on  his 
eighty-second  birth-day,  "  where  is  the  world  I  knew 
fourscore  years  ago  ?  If  Methuselah  had  been  on  the 
stage  when  William  the  Conqueror  landed  in  Britain, 
he  might  have  been  alive  now,  to  tell  us  all  about 
William  and  his  successors." 

Judge  Smith  never  fell  into  that  too  common  vice 
of  age,  exalting  the  past  at  the  expense  of  the  pre- 
sent. He  gratefully  acknowledged  that  he  saw  pro- 
gress in  almost  everything  ;  in  the  arts  and  sciences  ; 
in  our  benevolent  institutions  ;  in  legislation  and  the 
administration  of  justice ;  in  the  general  aspect  and 
condition  of  the  country  ;  in  furniture  and  dress ; 
and  he  believed  also  in  virtue  and  knowledge.  "  It 
would  be  something  new,"  he  said,  "  to  speak  of  im- 
provements in  dress ;  but  since  gentlemen,  and,  I 
may  add  ladies,  have  been  more  engaged  in  storing 
the  inside  of  their  heads  with  knowledge,  a  less  ex- 
pensive and  more  simple  mode  of  adorning  the  out- 
side has  prevailed." 

"  I  remember  to  have  seen,  when  a  student  at  law 
in  Salem,  a  letter  written  a  century  and  a  half  before 
by  a  member  of  the  family,  who  enterprised  and 
happily  achieved  a  journey  to  Boston.  He  had  been 
so  good  as  to  relieve  the  anxiety  of  his  friends  by  a 
line  from  the  half-way  station  at  Lynn,  saying  all  was 
yet  well,  and  his  hopes  sanguine  of  a  successful  ter- 


4OO  LIFE    OF    JUDGE    SMITH. 

mination  of  the  journey,  and  promising  to  write  as 
soon  as  relieved  from  its  fatigues.  This  letter  was  a 
fulfilment  of  the  promise,  and  made  doubly  welcome 
by  the  information  that  all  their  friends  and  relations 
in  the  capital  had  been  blessed  with  good  health. 
He  gave  his  friends  in  Salem  a  rich  treat  in  the  ac- 
count (which  indeed  constituted  the  bulk  of  the 
letter)  of  the  Thursday  Lecture,  from  which  he  was 
just  come  ;  who  preached,  the  text  and  heads  or 
principal  divisions,  with  the  more  important  subdi- 
visions, and  the  uses  for  examination  and  improve- 
ment." 

"  The  transition  from  roads  and  carriages  is  natu- 
ral to  the  farms,  fences  and  houses  of  the  persons 
who  have  occasion  to  use  them.  On  all  these  sub- 
jects in  our  country  north  of  the  Delaware,  I  can,  as 
early  as  the  close  of  the  revolutionary  war,  speak 
from  some  actual  knowledge.  There  were  some 
good  farms,  and  some  good  farmers  ;  but  these  only 
served  to  show  in  a  worse  light  the  general  aspect  of 
the  country.  The  agricultural  books  were  mostly 
English,  better  calculated  to  mislead  than  instruct ; 
farming  knowledge  was  merely  traditional,  and  of 
course  mixed  up  with  the  ignorance  and  prejudice  of 
a  more  rude  state  of  society.  I  shall  never  forget  the 
appearance  of  Varlo's  Husbandry,  which  was  brought 
in  a  wagon  or  horse-cart  from  Pennsylvania,  preceded 
a  few  days  by  the  agent  with  his  subscription  paper. 
The  gentlemen  round  Boston,  and  some  few  in  Ports- 
mouth liberally  subscribed.  When  the  book  came, 
it  was  soon  discovered  to  be  the  compilation  of  an 
ignorant  adventurer,  got  up  to  sell.  There  was  then 


LIFE    OF    JUDGE    SMITH.  457 

no  American  Farmer  or  New  England  Farmer,  no  such 
treatises  as  those  by  Deane,  Peters,  Bordley,  and 
many  others  now  in  everybody's  hands.  The  gen- 
tlemen farmers  of  that  day  rather  brought  disgrace 
on  science  than  recommended  it.  Their  farming, 
remarkable  for  nothing  but  the  expense,  was  justly 
ridiculed.  All  things  are  now  changed.  No  man 
can  ride  through  the  country  without  being  cheered 
on  his  way  by  the  sight  of  good  farms,  well  cultivated, 
and  no  less  gratified  by  the  intelligence  and  skill  of 
the  cultivators." 

Judge  Smith  saw  even  greater  improvements  in 
more  important  matters.  "  Among  the  charities  of 
this  charitable  age,  there  are  some  every  way  worthy 
of  honorable  mention  ;  hospitals  for  the  sick  and  lu- 
natic, asylums  for  the  blind,  and  schools  of  instruction 
for  those  whom  heaven,  in  its  righteous  dispensations, 
has  deprived  of  the  gifts  of  hearing  and  of  speech. 
When  I  take  up  a  newspaper,  and  find  a  rich  man 
remembering  the  forgotten,1  and  hearing  the  cry  of 
the  dumb  who  cannot  speak  for  themselves,  I  am 
ready  to  thank  God  that  I  live  in  a  Christian  world. 

"  It  is  said  we  like  the  things  of  our  youth.  It  is 
not  so  with  me.  I  prefer  the  present  times  in  most 
things.  While  we  live  in  the  world,  we  must  take 
in  some  degree  the  color  of  the  world  as  it  moves 
along.  The  Persian  epitome  of  the  history  of  man, 
'they  were  born,  they  were  wretched,  they  died,'  is 
not  true  of  us.  They  were  born,  they  daily  advanced 
in  civilization,  virtue  and  happiness,  they  died  and 


1  Burke. 
39 


459  LIFE     OF     JUDGE     SMITH. 

were  transferred  to  a  new  region,  where  more  perfect 
enjoyments  awaited  them.  Can  we  improve  in  every- 
thing but  morals  ;  in  all  things  without,  but  nothing 
within  ? 

"  The  little  we  have  sketched  suffices  to  show  the 
perfectibility,  or  rather  the  improvability  of  our  race. 
What  though  we  cannot  here  reach  the  summit  ? 
There  is  a  pleasure  in  climbing,  especially  where 
every  step  increases  the  extent  of  the  prospect,  and 
adds  something  to  the  rational  enjoyment  of  life. 
Little  you  and  I  can  do,  but  the  least  mite  [cast  by 
each]  into  the  treasury  of  knowledge  will  add  some- 
thing to  the  general  stock." 

This  was  Judge  Smith's  habitual  way  of  comparing 
the  past  and  the  present,  and  it  is  easy  to  see  how 
much  it  must  have  added  to  his  cheerfulness,  as  he 
found  himself  borne  along  so  far  upon  the  stream  of 
time.  He  did  not  allow  himself  to  fall  behind,  but, 
in  his  intellectual  and  social  habits,  kept  up  with  the 
world.  He  knew,  except  through  translations,  very 
little  of  the  continental  literature  of  Europe  ;  but 
kept  himself  well  acquainted  with  what  was  going  on 
in  England  and  the  United  States.  He  read  the 
principal  reviews,  and  added  to  his  library  the  most 
important  works  as  they  came  out.  Many  rare  and 
curious  books,  which  he  did  not  care  to  purchase, 
were  furnished  for  his  perusal,  through  the  kindness 
of  his  friends l  in  Boston  and  Cambridge.  He  eh- 


1  He  was  greatly  indebted  for  favors  of  this  kind  to  Mr.  Charles  Folsom 
and  Mr.  Joseph  E.  Worcester.  Writing  to  one  of  them  for  some  work,  he 
says,  "  If  it  cannot  now  be  had  (at  the  bookstores,)  I  should  be  glad  to 
get  it  on  loan  from  some  rich  man  who  has  read,  or  who  never  reads  his 


LIFE     OF     JUDGE     SMITH.  459 

joyed  reading  over  again  the  books  he  had  read  in 
youth.  "I  am  reading,"  he  said  in  1839,  "Lady 
Mary  Wortley  Montague's  Works,  the  new  edition. 
It  delighted  me  half  a  century  ago ;  re-perusals  of 
such  works  always  give  me  double  pleasure  —  new 
and  old."  But  he  also  enjoyed  works  that  were  en- 
tirely new  in  their  modes  of  thought  and  expression  ; 
as  for  instance,  the  works  of  Thomas  Carlyle.  He 
read  "  Sartor  Resartus,"  when  it  first  came  out,  and 
found  himself  as  wise  as  before.  But  he  saw  that  he 
was  dealing  with  a  man  of  genius  ;  and  though  he 
never  became  reconciled  to  the  style,  his  numerous 
quotations  from  "  the  History  of  the  French  Revolu- 
tion," show  that  he  had  at  length  learned  to  enjoy 
exceedingly  the  wit,  the  pungent  satire,  and  vivid 
descriptions  of  that  eccentric,  but  original  writer. 
His  Reviews,  as  they  came  out,  he  enjoyed  still  more. 
"  I  continue,"  he  says,  "  the  reading  of  Carlyle's  Sir 
Walter  Scott.  The  pleasure  increases,  and  I  hus- 
band it  as  well  as  I  can,  reading  but  a  page  or  two 
at  a  time.  I  have  taken  up  Emerson's  Concord,'  and 
admire  it  mightily.  I  shall  profit  by  it."  Bancroft's 
History  he  read  with  interest,  but  his  common-place 
book  contains  severe  comments  on  its  doctrines  ;  not 
more  severe,  however,  than  his  animadversions  on 
some  of  the  other  popular  literature  of  Massachusetts  ; 


books ; "  and  many  books  were  in  this  way  lent  to  him.  His  own 
library,  which  had  been  carefully  selected,  contained  rather  more  than 
four  thousand  volumes,  and  cost  about  ten  thousand  dollars. 

1  An  Address  at  the  Centennial  Celebration  at  Concord,  Massachu- 
setts, by  Ralph  Waldo  Emerson,  which  Judge  Smith  considered  much 
the  best  thing  of  the  kind  that  he  had  then  seen. 


460  LIFE     OF     JUDGE     SMITH. 

particularly  some  of  the  orations  and  reviews  which 
were  so  much  admired  in  their  day,  but  which  he 
regarded  as  inflated  specimens  of  oratory  ;  wanting 
in  purity  of  taste,  and  still  more  in  sound,  practical 
judgment.  In  literature,  as  in  society,  there  was  no- 
thing which  he  could  not  better  endure  than  mere 
empty  show.  He  liked  works  of  amusement,  and 
was  willing  to  read  nonsense,  provided  it  were  will- 
ing to  pass  for  nonsense.  But  the  solemn  common- 
places, which  are  every  man's  property  by  right  of 
possession,  swelling  out  in  a  fine  drapery  of  words, 
and  passing  themselves  off  as  something  new  and 
great,  were  his  utter  aversion.  So  too.  mucli  as  he 
loved  to  follow  an  ingenious  process  of  thought  when 
there  was  substance  in  it,  he  had  no  respect  for  the  fine 
theories,  which,  whether  got  up  for  self-adulation  or  the 
reformation  of  the  world,  make  such  a  din  in  the  ears 
of  our  modern  society.  They  gave  him,  however,  no 
uneasiness.  The  world  had  not  been  built,  nor  did 
he  believe  it  could  be  destroyed,  by  such  means. 

Thus  in  his  studies  he  found  food  for  daily  thought ; 
and  instead  of  lingering,  as  the  half-forgotten  relic  of 
a  former  age,  he  went  along  a  living  man  in  the 
midst  of  a  living  world.  "  I  have  felt,"  he  said, 
"  nothing  of  that  tedium  which  persons  accustomed 
to  the  activity  of  public  or  professional  life  frequently 
feel  in  retirement."  Having  the  best  thoughts  of  past 
and  present  times  within  his  reach,  he  could  always, 
when  other  resources  failed,  retreat  to  his  library, 
and  there  forget  himself.  "  We  have  had,"  he  wrote 
to  his  wife,  "  no  company,  and  sometimes  I  have  been 
solitary.  I  then  turn  afresh  to  my  book  again.  O 


LIFE     OF     JUDGE     SMITH.  461 

blessed  books  !  What  would  life  be  without  you  ?  A 
solitude  indeed."  In  another  letter  he  says,  "  Rejoice 
with  me  at  this  seasonable  rain.  It  is  quite  refresh 
ing  to  your  Exeter  fields.  I  enjoy  reading  such  days 
exceedingly.  I  hope  they  have  plenty  of  good  books 
in  the  other  world."  So  he  went  on  to  the  end,  as 
eager  in  the  pursuit  of  knowledge,  and  finding  as 
much  enjoyment,  and,  with  his  richly  stored  mind, 
more  instruction  in  books,  than  when,  as  a  boy,  he 
went,  after  his  day's  work  was  done,  three  or  four 
miles  on  foot,  to  borrow  some  stray  volume  which  he 
had  heard  of. 

Judge  Smith's  interest  in  the  young  was  one  of 
the  most  beautiful  features  of  his  character.  His 
love  of  children,  his  power  of  interesting  them,  and 
his  intercourse  with  the  younger  members  of  his  own 
family,  have  been  already  spoken  of;  and  mention 
has  been  made  of  his  attention,  when  on  the  bench, 
to  young  men  just  entering  the  profession.  In  his 
situation  as  president  and  treasurer  of  Phillips  Exeter 
Academy,  which  offices  he  held  from  1828  to  1842, 
he  was  brought  a  good  deal  into  connexion  with  the 
students,  and  it  was  always  a  great  pleasure  to  him, 
to  encourage  and  help  forward  those  who  were  dis- 
posed to  make  the  most  of  their  advantages.  For 
several  years  he  used  to  have  some  half  a  dozen 
students,  to  dine  and  take  tea  with  him  once  a  week. 
He  always  rejoiced  to  see  in  his  house  a  lively,  in- 
telligent boy,  and  entertained  him  with  as  much 
vivacity  and  politeness  as  if  he  had  been  a  man  of 
his  own  age  and  standing.  His  house  became,  there- 
fore, a  favorite  resort  for  many  young  men.  An  ex- 
39* 


462  LIFE     OF     JUDGE  SMITH. 

tract  from  the  letter  of  one l  who  had  then  just  en- 
tered the  academy,  and  whose  early  death  has  fixed 
its  everlasting  seal  on  a  life  of  peculiar  beauty,  shows 
the  feelings  with  which  many  came  from  his  house. 
"  This  week  has  been  the  longest  I  ever  spent.  I 
think,  from  the  time  father  left  till  Saturday  noon, 
I  have  not  kept  the  run  of  the  days  of  the  week ; 
but  thought  they  would  never  get  to  a  stopping- 
place.  When  I  came  from  school  Saturday  noon, 
after  being  frightened  out  of  my  wits  by  so  many 
strange  faces  and  dignified  looking  teachers,  and 
found  father  gone,  and  Mr.  M.  gone,  and  not  a  single 
familiar  face,  every  body  and  every  thing  looking 
strange  and  unnatural,  and  feeling  too  that  I  cared 
for  nobody,  and  nobody  cared  for  me,  I  must  say  I 
felt  more  homesick  than  I  ever  expected  to  be.  I 
was  really  rejoiced  to  see  a  mosquito,  although  he 
did  come  to  bite  me  ;  he  looked  like  an  old  friend, 
and  I  was  more  glad  to  see  him  than  I  ever  was  to 


1  Robert  Swain,  born  at  New  Bedford,  February,  1823;  entered  Har- 
vard University  in  1841 ;  died  at  Harrisonburgh,  Va.,  the  15th  of  June, 
1844.  It  was  my  privilege  to  know  him  through  years  of  intimacy,  first 
as  a  pupil  and  always  as  a  friend.  His  character,  chastened  and  puri- 
fied by  a  life  of  suffering,  but  at  the  same  time  a  happy  life,  presented 
An  assemblage  of  virtues  exquisitely  blended,  and  unfolding,  as  death 
approached,  into  an  almost  celestial  beauty.  He  had.  what  is  perhaps 
the  rarest  of  all  endowments,  that  simplicity  of  mind  and  heart,  which 
is  so  inseparably  connected  with  purity  of  taste,  soundness  of  judgment, 
and  rectitude  of  conduct,  and  which,  when  joined  to  a  delicate  mental 
organization,  and  shining  out  through  the  lowly  and  lofty  graces  of  a 
religious  faith,  is  among  the  fairest  of  all  the  beautiful  things  which 
God  has  placed  upon  the  earth.  His  life  was  one  of  continued  progress  ; 
each  year  witnessing  some  new  and  brighter  manifestation  of  character ; 
till  his  whole  spiritual  nature  had  become  so  developed,  that,  though  he 
died  at  the  age  of  twenty-one,  his  death  could  not  seem  untimely  to 
those  who  knew  him  best. 


LIFE    OF    JUDGE    SMITH.  463 

see  a  mosquito  before.  But  in  the  afternoon  I  went 
to  walk  in  the  woods,  and  coming  back  stopped  in  at 
Judge  Smith's  to  pay  my  tuition,  and  found  that  an 
excellent  place  to  cure  homesickness  —  they  were  all 
so  kind  and  pleasant,  and  such  a  remarkably  pleasant 
house  and  grounds ;  and  then  I  suppose  Mr.  M. 
would  say  the  young  ladies  were  so  agreeable.  At 
any  rate,  I  have  not  had  an  attack  of  the  disease 
since,  only  occasional  touches  now  and  then.  Yes- 
terday afternoon  I  spent  at  the  judge's  too.  He  in- 
vited George  H.,  who  rooms  with  me,  and  whom  I 
like  very  much,  C.  H.,  another  boy  who  boards  at 
this  house,  and  myself,  up  there  to  dinner.  We 
spent  the  afternoon  and  evening  very  pleasantly. 
The  judge  is  the  most  entertaining  old  man  I  ever 
saw." 

Judge  Smith's  patience  in  the  prolonged  visits  of 
stupid  young  men,  or  of  boys  who,  from  a  feeling  of 
diffidence  and  awkwardness,  could  not  get  up  to  go 
away,  was  of  the  most  exemplary  kind.  I  remember 
one  in  particular,  a  heavy,  dull  fellow,  with  good  in- 
tentions indeed,  but  none  the  more  lively  on  that 
account,  who  used  to  call  often  upon  him,  and  who 
never  seemed  to  know  when  to  depart.  He  was 
poor,  and  had  the  most  persevering  wish  to  get  an 
education.  As  a  trustee  of  the  academy,  Judge 
Smith  uniformly  voted  against  assisting  him  from  the 
funds  of  the  institution  ;  but  he  submitted  to  his 
visits,  gave  him  all  the  advice  he  could,  furnished 
him  with  money,  invited  him  (as  he  was  boarding 
himself,)  to  come  often  to  his  house  at  meal  times  ; 
though  he  was  all  the  while  dissuading  him  from  his 


464  LIFE    OF    JUDGE    SMITH. 

attempt  to  get  that  sort  of  education,  for  which 
nature  so  evidently  had  not  designed  him.  He  hon- 
ored his  perseverance,  and  felt  for  him  ;  but  could 
not  in  conscience  encourage  him  in  his  undertaking. 

It  was  always  particularly  Judge  Smith's  delight  to 
aid  young  men  whom  he  found  struggling  with  the 
narrowness  of  their  means  in  the  pursuit  of  know- 
ledge. He,  who  prepares  these  pages,  is  but  one  of 
those  who,  when  poor,  friendless,  and  inexperienced, 
were  permitted  to  lean  on  him,  and  who  will  not 
cease  to  bless  God  for  such  a  friend  at  such  a  time. 
It  was  not  what  he  gave,  liberal  and  timely  as  were 
his  benefactions,  that  awakened  their  gratitude.  The 
manner  in  which  he  did  it  made  them  feel,  not  as  de- 
pendents on  his  charity,  but  as  children  admitted  to 
his  confidence,  and  receiving  these  tokens  of  his 
affectionate  regard.  The  richness  of  his  instructions, 
descending  into  the  minute  branches  of  learning, 
which  at  the  beginning  are  so  essential  to  the  future 
scholar;  the  ease  with  which  he  entered  into  the 
feelings  of  the  young,  charitably  sympathizing  even 
with  their  extravagances ;  the  delightful  conversations 
by  which  he  introduced  them  to  the  great  men  of  a 
former  generation  ;  the  intense  desire  for  knowledge, 
virtue  and  an  honorable  distinction  among  men, 
which  was  kindled  by  their  intercourse  with  him  ;  — 
these  higher  obligations,  which  every  ingenuous  mind 
icjoices  to  acknowledge,  hardly  permitted  them  to 
feel  the  sense  of  pecuniary  obligation,  which  so  often 
injures  both  him  who  gives  and  him  who  receives. 

There  was  no  subject  in  which  Judge  Smith 
through  life,  but  especially  towards  its  close,  took  so 


LIFE    OF    JUDGE    SMITH.  465 

decided  an  interest,  as  the  education  of  the  young. 
One  of  his  earliest  efforts  in  his  native  town  was  to 
improve  the  public  schools.  We  have  seen  how  ear- 
nestly, as  a  judge,  he  endeavored  to  impress  upon 
the  community  a  sense  of  their  importance.  In  his 
later  lectures,  the  diffusion  of  knowledge  and  virtue 
among  the  people  was  still  the  subject  uppermost  in 
his  thoughts.  But  he  was  not  one  of  those  narrow 
men,  who  would  build  up  our  academies  and  common 
schools  at  the  expense  of  the  higher  institutions  of 
learning ;  and,  notwithstanding  the  shining  excep- 
tions that  are  given,  he  did  not  believe  it  wise  to 
enter  upon  the  studies  of  a  profession  without  a 
college  education.  To  a  young  man  prepared  for 
the  sophomore  class,  but  rather  advanced  in  years  for 
entering  college,  who  asked  him  whether  he  should 
not  begin  the  study  of  the  law  then,  he  replied, 
"  Without  a  thousand  times  more  knowledge  of  you 
than  I  possess,  I  could  not  advise.  Your  age  is 
against  the  college  course.  If  your  object  at  the  bar 
is  money,  then  the  sooner  you  enter  the  better  ;  little 
preparation  is  necessary.  If  content  to  carry  your 
professional  character  to  a  moderate  height  only,  you 
may  do  very  well  without  college.  If  your  aim  is  to 
be  a  lawyer  in  deed  as  well  as  name,  —  to  be  a  libe- 
ral, scientific  expounder  of  the  law,  and  to  enjoy  it, — 
you  can  hardly  have  too  much  preparation.  Six 
years  of  preparatory  studies  before  the  study  of  a 
profession,  are  little  enough.  I  should  prefer  three 
years'  college  and  three  years'  law  studies,  in  almost 
any  country  office,  to  five  years  of  the  latter,  even  at 
the  Cambridge  Law  School.  Twenty-five  is  a  good 


466  LIFE    OF   JUDGE    SMITH. 

age  to  commence  practice ;  it  was  mine,  and  I  think 
early  enough.  But  after  all,  you  must  be  your  own 
adviser.  The  mark  you  aim  at  in  life  must  decide. 
I  have  no  doubt  you  can  be  what  you  will." 

With  his  deep  interest  in  the  education  of  the 
young,  particularly  of  those  in  destitute  or  moderate 
circumstances,  it  was  to  Judge  Smith  a  source  of 
great  regret,  that  the  expenses  at  Harvard  University 
should  be  so  great  as  almost  necessarily  to  exclude 
such  young  men  from  its  advantages.  It  does  seem 
both  unreasonable  and  unjust,  that  an  institution  en- 
dowed with  funds  to  the  amount  of  more  than  half 
a  million  of  dollars,  should  set  so  high  a  price  on  its 
instructions,  that  its  charities,  (and  all  its  funds  are 
charities,)  can  be  of  use  to  few  except  the  sons  of 
rich  men.  The  great  body  of  those  who  seek  a  lib- 
eral education,  the  sons,  for  instance,  of  intelligent 
farmers  and  mechanics,  are  thus  in  a  great  measure 
shut  out  from  its  walls,  and  the  college  is  deprived 
of  the  presence  and  example  of  those,  who,  bringing 
with  them  less  expensive  habits,  and  having  every 
inducement  to  improve  themselves,  would  kindle  the 
zeal  of  others,  and  give  character  to  the  institution, 
and  who,  returning  home  when  they  had  finished 
their  course,  would  awaken  through  the  country  a 
new  interest  in  behalf  of  the  college.  Its  well-being, 
thus  identified  with  the  cause  of  education  through- 
out the  community,  would  soon  come  to  be  more 
generally  cherished  and  advanced.  Instead  of  being 
a  sort  of  high  school  for  the  sons  of  rich  men  in  Bos- 
ton and  the  neighboring  towns,  it  would  become  a 
true  university,  entertaining,  with  an  enlarged  hospi- 


LIFE     Or     JUDGE     SMITH.  467 

tality,  those  who  have  only  character,  talents  and  a 
thirst  for  knowledge  to  recommend  them,  and  by 
means  of  them  dispensing  it's  instructions  through  the 
whole  land.  On  none  would  the  influence  of  such  a 
state  of  things  be  more  happy  than  on  those  classes 
who  now  usually  resort  to  it  for  their  education.  In 
taste  and  knowledge,  in  its  instructions  and  intellect- 
ual requirements,  such  an  institution  can  hardly  raise 
itself  too  high  above  the  community  at  large  ;  but  it 
can  hardly  open  its  arms  too  wide  to  receive  and 
cherish  all,  of  whatever  class  or  condition,  who  would 
avail  themselves  of  its  advantages.  If  its  present 
funds  cannot  be  so  applied  as  to  lessen  the  evil  at 
Harvard  University,  is  it  not  a  matter  worthy  to  be 
commended  to  those  who  would  be  among  its  best 
benefactors  ? 

Judge  Smith  was  so  much  interested  in  this  mat- 
ter, that,  when  without  children,  it  was  his  intention 
to  leave  a  considerable  part  of  his  estate  for  the  foun- 
dation of  scholarships  at  Harvard  University.1  About 
a  year  before  his  death,  he  was  applied  to  through  a 
common  friend,  by  a  gentleman  of  large  means  and  a 
larger  heart,  for  advice  respecting  the  endowment  of 
an  academy,  in  the  hope  that  it  might  "  render  essen- 
tial service  to  some  poor  boys  of  future  time."  After 


1  His  plan  was  to  leave,  say,  an  annuity  of  one  thousand  dollars  for 
six  scholarships — this  sum  not  to  be  doled  out  as  a  reluctant  or 
degrading  charity,  hut  as  a  reward  and  encouragement  to  the  most 
deserving  among  those  who  might  not  otherwise  be  able  to  support 
themselves.  At  the  Abbot  Festival,  it  was  proposed  by  many  of  Dr. 
Abbot's  pupils,  to  endow  a  scholarship  of  this  kind  to  be  called  by  his 
name.  No  more  fitting  monument  could  be  raised  to  the  memory  of  an 
honored  instructor.  May  it  not  yet  be  done  ? 


468  LIFE    OF    JUDGE    SMITH. 

specifying  some  particulars  which  it  is  not  worth  the 
while  to  introduce  here,  Judge  Smith  said,  as  appears 
from  a  rude  draft  of  his  letter,  "  I  would  not  have  it 
limited  to  the  blood  or  kindred  of  the  donor,  or  to 
natives  of  particular  places,  but  to  bright  boys  within 
certain  ages.  My  experience  is  in  favor  of  fourteen 

to  twenty.  I  wish  Mr. would  extend  his  views 

beyond  charity  scholars,  in  and  during  their  stay  in 
the  academy,  and  do,  on  a  large  scale,  what  I  once 
intended  on  a  small  one  —  found  several  scholarships 
in  Harvard  College  ;  the  academy  trustees  to  select 
from  their  students  at  the  beginning,  and  the  college 
to  have  a  voice  in  continuing  them.  This  is  the  best 
of  all  charities ;  the  object  the  best  and  the  most  use- 
ful, and  the  most  likely  to  be  faithfully  executed. 

"  It  would  add,  I  really  believe,  to  my  joys  in 
heaven,  if  haply  I  may  find  myself  there,  to  look 
down  on  a  number  of  fine  young  men,  increasing  in 
knowledge  and  virtue  on  my  honest  earnings.  This 
good  feeling  sometimes  almost  excites  regret,  that 
other  objects  command  the  whole  of  my  scanty 

means.  Have  the  goodness  to  express  to  Mr. 

my  best  wishes  for  his  health  and  happiness  here  and 
hereafter,  and  to  believe  me,  as  in  the  many  by-gone 
years,  your  sincere  friend  and  obedient  servant." 

The  sort  of  interest  Judge  Smith  took  in  young 
ladies,  may  be  seen  in  part  from  his  letters  already 
given.  The  three,  to  whom  he  was  most  attached, 
and  with  whom  he  corresponded  most  freely,  were 
Miss  Ellen  Smith,  the  daughter  of  his  brother  Sam- 
uel ;  Miss  Lowe,  a  niece  of  Mrs.  Smith's,  and  Miss 
Hammond,  of  Boston,  a  young  lady  whom  he  first  met 


LIFE    OF    JUDGE    SMITH.  469 

while  on  his  journey  to  the  south  in  1836,  who  was 
afterwards  the  intimate  friend  of  Mrs.  Smith,  and 
came  more  than  once  to  watch  with  the  judge  during 
his  last  illness.  No  kind  of  social  intercourse  can  be 
more  pleasant,  or  more  useful  to  all  concerned,  than 
this  union  of  youth  and  age  —  the  old  man  cheerfully 
imparting  his  gathered  stores  of  wisdom,  and  enriched 
in  return  by  that  which  softens  his  austerity  and  keeps 
alive  his  better  nature.  He  becomes,  then,  in  his 
affections,  like  the  evergreen  on  which,  as  the  old 
leaves  drop  off,  new  leaves  are  formed,  and  it  contin- 
ues crowned  with  greenness  through  the  year.  Some 
further  idea  of  what  this  intercourse  was,  may  be  given 
by  further  extracts  from  Judge  Smith's  letters. 

To  Miss  Ellen  Smith.  "Exeter,  14th  March, 
1839.  My  dear  Ellen  :  I  am  sure  you  will  be  sorry 
I  have  so  good  excuse  for  not  writing.  I  have  been 
for  the  last  ten  weeks  more  than  usually  indisposed. 
My  cough  in  the  first  half  was  quite  distressing.  It 
is  now  quite  gone  ;  but  I  am  less  relieved  than  at  any 
former  period  within  my  remembrance.  My  cheer- 
fulness did  not  forsake  me.  I  longed  for  you  to 
nurse  me,  partly  on  account  of  your  own  merits,  and 
partly  because  it  would  relieve  Elizabeth,  who  had 
too  much  on  her  hands.  The  dear  Jeremiah  burnt 
both  his  hands  on  the  cook-stove  sadly  ;  he  bore  it 
like  a  man,  and  is  now  quite  well  and  happy.  Eliza- 
beth has  been  much  as  usual,  but  is  now  a  good  deal 
indisposed.  Mary  Lowe  has  come  to  our  relief,  and 
we  shall  all,  I  hope,  do  quite  well  very  soon.  How 
have  you  spent  the  winter  ?  I  hope  not  unpleasantly. 
I  believe  you  are  happy  on  less  means  than  most 
40 


470  LIFE    OF    JUDGE    SMITH. 

other  people.  By  means,  I  must  refer  to  externals, 
for  in  the  better  sort  of  good  things  you  abound.  A 
disposition  to  be  pleased,  especially  when  we  have 
plenty  of  duties  to  perform,  is,  next  to  religion,  the 
best  of  heaven's  gifts. 

"  I  long  to  hear  particularly  of  our  Peterborough 
friends,  and  you  are  my  only  reliance.  Your  last 
letter  was  admirable  in  gossip  and  kindness ;  and  re- 
member you  must  not  change,  on  peril  of  incurring  a 
diminution  in  my  love.  I  am  pretty  sure  I  should 
be  the  greatest  sufferer.  I  have  heard  it  said  that 
age  blunts  our  kindly  affections  ;  I  do  not  find  it  so. 

"  I  forget  whether  you  were  particularly  acquainted 
with  my  favorite  Eliza  Odiorne.  She  has  lately  lost 
her  lover  —  was  at  Amherst,  Massachusetts,  at  the 
time.  I  hear  she  bears  it  well  —  like  a  woman  — 
the  phrase  will,  I  hope,  get  into  use. 

"  This  is  a  very  stupid  letter,  but  don't,  dear  El- 
len, ascribe  it  to  loss  of  mind,  and  especially  of  heart 
youward.  I  will  do  better  the  next  time.  With 
my  love  to  your  father  and  mother,  and  the  Miss 
Morisons,  believe  me  your  affectionate  friend." 

To  Miss  Ellen  Smith.  "  Exeter,  Monday,  May 
27th.  You  are  not  to  suppose,  dearest  Ellen,  that  I  am 
not  thankful  for  your  letters,  because  I  do  not  immedi- 
ately answer  them.  The  neglect,  assuredly,  never  arises 
from  want  of  love  for  you.  I  owe  you  for  two  let- 
ters :  this  proves  my  willingness  to  be  in  your  debt ; 
yet  this  is  the  only  sort  of  debt  I  am  willing  to  owe. 
Every  expression  of  your  regard  gives  me  pleasure ; 
and  this  is  one  of  the  few  things  whose  value  in- 
creases by  repetition.  How  kind  it  is  in  Providence 


LIFE    OF    JUDGE    SMITH.  471 

to  give  me  such  a  correspondent,  when  so  many  friends 
and  relations  are  gone  to  distant  places  ! 

"  I  flatter  myself  it  will  give  you  pleasure  to  know 
that  I  am  in  the  enjoyment  almost  of  my  usual 
health  ;  but  a  little  more  sensible  than  formerly,  by 
how  slender  a  tenure  I  hold  this  greatest  of  earthly- 
blessings.  I  must  regard  it  merely  as  a  present  good 
—  enjoy  it  as  such,  ready  at  any  moment  to  part  with 
it.  It  would  be  unreasonable  in  me  to  expect  rugged 
health  at  this  day.  I  wish  your  father's  was  as  good, 
and  as  much  better  as .  you  could  desire.  I  am  glad 
to  hear  that  your  mother  is  so  well.  At  this  moment, 
Ellen,  it  would  give  me  great  pleasure  to  look  into 
your  cottage  on  the  hill-side.  I  could  say  a  thou- 
sand things  not  important  enough  to  commit  to  pa- 
per. But  in  such  trifles  consist  many  of  the  pleasures 
of  life :  you  need  not  be  much  surprised,  if  in  the 
course  of  the  three  or  four  coming  weeks,  you  should 
see  your  aunt  and  myself  in  Peterborough.  There 
is  nothing  in  which  we  (Elizabeth  and  myself)  agree 
better  than  in  love  for  you. 

"  Would  you  were  here,  Ellen !  We  promise  our- 
selves fine  weather  after  the  cold  and  dull  we  have 
had  —  come  and  help  us  to  enjoy  the  good.  We  have 
had  no  blossoming  in  the  garden  '  to  speak  of.'  In 
general,  I  am  as  little  dependent  on  the  weather  as 
most  men  ;  but  owing  perhaps  to  the  remains  of  in- 
disposition, I  have  felt  it  a  little.  I  could,  perhaps, 
in  that  weather,  have  enjoyed  a  little  French  or  Latin 
with  you. 

"  Have  you  heard  that  your  friend  Miss is 

going  to  instruct  in  an  academy  at ?  and  it  is 


472  LIFE    OF    JUDGE    SMITH. 

said  the  situation  was  procured  for  her  by  Mrs. 
Walker.  Is  there  to  be  no  end  to  the  good  deeds  of 
that  woman  ? 

"  Mrs.  S.  thinks  you  would  find  Made-  de  Stael's 
French  Revolution  in  for  a  good  book.  We 
have  it  in  French  and  English  —  separate  books, 
which  are  at  your  service,  if  not  to  be  found  with 
you.  Possibly  Mr.  Leonard  may  have  the  work.  I 
have  been  reading  the  Pickwick  Papers,  by  Dickens. 
He  keeps  me  excited  all  the  time.  He  is  my  knit- 
ting-work ;  but  I  do  not  recommend  the  book  to  you. 
You  will  read  Oliver  Twist  with  pleasure,  and  Nich- 
olas Nickleby,  when  all  out.  I  recommend  the  first 
volume  of  Washington's  works  —  Sparks.  It  is  his 
Life,  and  I  think  exceedingly  well  done.  Mrs.  S.  is 
engaged  in  reading  Taylor's  Home  Education,  and  is 
much  pleased  with  it ;  from  the  passages  she  reads 
to  me,  I  agree  in  the  commendation.  There  never 
was  a  time  when  advice  as  to  the  choice  of  books 
was  more  necessary  ;  there  are  so  many,  (and  floods 
of  trash)  in  circulation.  Need  I  say,  dearest  Ellen, 
that  I  take  pleasure  in  conversing  with  you,  and  that 
I  give  full  credit  to  your  polite  declarations,  desiring 
me  to  write  long  letters.  I  need  not  say  that  Eliza- 
beth and  Jeremiah,  Jr.  send  their  best  love,  and  that 
I  am  yours,  very  affectionately." 

About  the  middle  of  June,  1839,  Judge  Smith 
went  in  a  chaise  with  his  niece,  Mary  S.  Lowe,  to 
Hanover,  which  of  course  took  him  through  nearly 
the  whole  extent  of  New  Hampshire.  It  was  a  road 
which  he  had  often  travelled  in  foimer  days.  — 
"  What  ravages,"  he  said  in  a  letter  to  his  wife,  dated 


LIFE    OF    JUDGE    SMITH.  473 

June  21,  "twenty  years  have  made  among  my  friends 
and  acquaintances  on  this  route  !  Well  may  we  say 
'  I  would  not  live  alway  1 '  I  believe  I  find  it  as  easy 
to  make  new  acquaintances  as  most  people,  but  even 
with  me,  tempora  mutanlur.  '  Blessed  is  he  that  ex- 
pecteth  nothing,  for  he  shall  not  be  disappointed.'  " 
Two  days  later,  from  the  same  place  he  wrote :  "  I 
have  escaped  an  unlooked-for  calamity.  Last  even- 
ing a  committee  from  the  senior  class  waited  on  me 
at  Dr.  Lord's,  requesting  an  address  to  the  students, 
&c.  I  declined  on  the  pretence  of  want  of  time, 
health,  &c.  ;  in  truth,  want  of  something  to  say,  and 
a  little  awkwardness  at  this  day  in  the  saying  of  that 
nothing.  Whether  I  satisfied  the  applicants  or  not, 
I  can't  say,  but  I  am  sure  I  have  made  a  saving  of 
character.  I  was  in  some  measure  governed  by  my 
regard  for  you  and  Jeremiah,  to  save  you  from  the 
mortification,  twelve  years  hence,  when  you  come  up 
hither  to  enter  the  boy,  of  hearing  the  address  dispar- 
agingly spoken  of.  .  There  's  a  prudent  man  for  you." 
i  Extracts  from  a  letter  to  Miss  Ellen  Smith.  "Ex- 
eter, July  3,  1839,.  Wednesday.  Mary  and  I  had  a 
delightful  ride  on  Monday.  It  delighted  me  to  travel 
on  the  new  road  —  an  excellent  one  —  and  Mary 
to  see  the  greatest  display  by  the  sides  of  the  road  of 
the  laurel  in  full  blossom,  the  largest  bushes  covered 
with  tops  of  beautiful  white  and  pink.  We  saw,  for 
miles,  enough  to  fill  your  large  church  twice  over. 
You  need  not  believe  me ;  I  am  afraid  I  should  credit 
nobody's  true  account.  Mary  loaded  the  chaise,  and 
her  only  regret  was,  that  she  could  not  take  them  all. 
We  reached  Derry  in  good  season,  and  the  next 
40* 


474  LIFE    OF    JUDGE    SMITH. 

morning  had  a  pleasant  though  warm  ride  home. 
We  found  the  family  very  well  and  very  happy. 
Jeremiah  knew  and  kindly  received  us  —  never 
better.  If  you  were  with  us,  the  measure  of  our 
happiness  would  be  complete,  bating  the  dear  Eliza- 
beth's absence. 

"  Mary  will  stay,  I  hope,  till  the  mistress  comes. 
So  far  all  good  ;  but  1  find  myself  a  good  deal  indis- 
posed and  a  little  feverish,  and  have  just  sent  to  Dr. 
Perry  for  something  to  make  me  well. 

"  I  do  not  know  that  I  ever  enjoyed  more  tranquil 
pleasure  on  an  excursion  in  all  my  life.  I  almost 
believe  I  have  a  good  tolerant  spirit.  How  much 
Mary  may  claim  as  the  procuring  cause,  I  cannot 
say;  I  am  sure  my  dear  Ellen  may  claim  a  good 
share  ;  and  may  it  continue  so  to  the  end  of  the 
chapter,  whether  the  same  be  longer  or  shorter.  I 
cannot  but  rejoice  that  I  enjoy  so  much  from  the 
good  things  in  my  allotment,  and  suffer  so  little  from 
the  annoyances  and  evils  of  life.  ...  I  am  not  sen- 
sible of  any  great  failure  in  these  respects  ;  but  in 
the  capacity  for  bodily  labor,  the  case  is  different. 
A  little  exertion  fatigues  me." 

"  Thursday  morning.  How  I  pity  the  poor,  lonely 
old  bachelors.  After  forty  no  man  should  be  single, 
nor  woman  either.  Do  you  know  I  am  puzzled  to 
account  for  Mr.  B.'s  visit  at  your  house  Sunday  even- 
ing ?  Coupling  that  with  the  house,  contiguity,  &c., 
I  am  in  a  maze. 

"  We  have  lost  Mary.  Her  brother  wrote  her  to 
attend  a  picnic  at  South  Berwick  to-day,  and  she 
could  not  resist.  Ednah  would  be  there.  For 
Ednah,  read  some  favorite  beau. 


LIFE    OF    JUDGE    SMITH.  475 

"  I  write,  dear  Ellen,  because  it  gives  me  pleasure. 
I  can  hardly  hope  it  will  give  equal  pleasure  to  you ; 
but  if  it  gives  you  any,  it  is  more  than  worth  the 
trouble.  This  is  not  a  proper  word.  But  there  is  no 
mistake  in  saying,  I  am  your  sincere  and  affectionate 
J.  S." 

In  the  summer  of  1838,  Judge  Smith  delivered  a 
centennial  address  in  Exeter,  at  the  close  of  its  second 
century.  He  had  spent  upon  it  much  time  and  labor. 
"  It  was,"  he  said,  "  never  a  favorite  with  me.  I 
have  not  been  disappointed  to  perceive  that  the 
hearers  have  adopted  the  same  opinion."  It  was 
probably  (for  I  have  not  seen  it,1)  too  much  taken  up 
with  details  for  a  popular  discourse.  The  next  sum- 
mer he  was  requested  to  deliver  an  address  at  the 
first  centennial  celebration  in  his  native  town.  He 
had  been  born  within  twenty  years  of  its  earliest  set- 
tlement, had  been  personally  acquainted  with  most  of 
its  original  inhabitants,  and  had  more  knowledge  of 
its  history  than  all  other  men  and  documents  com- 
bined. In  his  reply  he  said,  "I  have  given  much 
consideration  to  the  request  your  letter  contains,  with 
a  strong  desire  to  gratify  my  earliest  and  most  con- 
stant friends  ;  but  feel  myself  constrained,  as  well 
from  considerations  regarding  them,  as  myself,  to 
decline.  I  have  little  confidence  in  my  own  physical 
strength  for  such  a  service,  and  at  any  period  of  my 
life  should  have  required  a  much  longer  time  than  is 
allowed  for  preparation.  This  is  a  case  where  there 

1  After  having  been  nearly  seven  years  in  the  hands  of  a  printer,  it  is, 
I  understand,  to  appear  at  last  in  the  Collections  of  the  New  Hamp- 
shire Historical  Society. 


476  LIFE    OF    JUDGE    SMITH. 

may  be  too  much  seniority,"  &c.  In  a  letter  written 
a  day  or  two  later,  to  Miss  Ellen  Smith,  he  said  : 
"  I  can  remember  the  time  when  nothing  would  have 
promised  me  more  gratification  than  such  a  service  : 
but  Peterborough  has  departed  from  me  and  from  its 
place,  never  to  return.  I  hope  the  Grand  Monadnoc 
will  have  the  goodness  to  keep  its  place  as  long  as  I 
live."  Most  of  the  generation  with  which  he  had 
been  connected,  and  all  of  those  to  whom  he  had 
looked  up  as  his  seniors,  were  now  gone  ;  and  it 
must  have  been  a  melancholy  task  for  him  to  stand 
amid  strangers  in  his  native  place,  to  discourse  to 
them  of  those  his  early  friends,  who  had  now,  except 
a  few  feeble  and  gray-haired  relics,  all  passed  away. 

I  insert  the  following  letter,  as  indicating  the  sort 
of  feeling  with  which  Judge  Smith  looked  back  upon 
the  past,  and  especially  on  account  of  the  subdued 
and  tender  interest  which  it  shows  he  still  took  in  the 
family  connexions  of  his  first  wife. 

To  Miss  Margaretta  A.  Ross.  "  Exeter,  July  29, 
1839.  My  dear  sister:  I  am  glad  to  find  myself 
seated  at  my  table  in  the  library,  resolved  to  acquit 
myself  of  some  portion  of  the  debt  I  owe  you.  You 
have  been  very  good  in  writing  so  many  kind  letters, 
and  I  evil  and  apparently  unthankful  in  not  oftener 
acknowledging  them.  This  has  not,  however,  arisen 
from  want  of  affection  and  esteem  for  you  and  my 
friends  with  you.  I  fear  I  am  growing  worse  as  I 
grow  older.  I  was  not  in  former  times,  say  before  the 
last  twenty  years,  a  negligent  correspondent.  I  then 
quitted  business,  and  am,  I  fear,  since  less  punctual  : 
but  for  the  future  I  will  try  to  do  better.  You  must 


LIFE    OF    JUDGE    SMITH.  477 

not  impute  my  neglect  to  your  new  sister.  Her  in- 
fluence is  all  the  other  way.  I  assure  you  she  knows 
a  great  deal  of  your  family,  and  esteems  you  all, 
especially  the  female  part,  as  you  would  desire.  I 
have  been,  as  you  know,  in  the  habit  of  preserving 
the  letters  from  my  friends,  and  have  some  drafts  and 
copies  of  my  own.  My  whole  correspondence  with 
your  dear  sister  Eliza  is  on  file,  and  so  with  Ariana. 
I  wish  it  were  larger ;  for  it  is  exceedingly  precious 
to  me.  I  have  also  very  many  letters  from  relations 
and  valued  acquaintances,  male  and  female.  During 
the  last  winter  and  spring,  Elizabeth  and  myself  spent 
all  our  leisure  days  in  reading  them.  It  was  pleasant 
to  us  both,  and  Mrs.  S.  is  now  the  better  informed  of 
the  two  in  my  past  life  and  in  the  history  of  your 
family.  You,  even  you,  can  hardly  conceive  how 
perfect  she  is  in  the  peculiar  character  of  our  late 
sister,  H.  M.  R.  You  know  how  well  and  minutely 
and  impartially,  too,  she  describes  things  ;  and  woe  to 
the  subject  of  her  letters,  if  they  happen  to  have  any 
faults.  It  is  a  chance  if  we  do  not  hear  of  them. 
She  and  her  daughter  Elizabeth,  that  used  forty- 
three  years  ago  to  sit  on  my  knee,  died,  I  think, 
before  my  dear  Ariana.  If  her  sons  partake  at  all  of 
her  energetic  character,  they  must  succeed  in  life." 

After  some  details  respecting  his  infant  son,  Judge 
Smith  adds  :  "  You  are  aware  that  I  am  upon  the 
eve  of  fourscore,  and  do  not  expect  to  see  him  edu- 
cated ;  but  he  is  in  good  hands,  divine  and  human, 
and  I  have  no  anxieties  on  this  or  any  other  score. 
The  same  kind  Providence  that  has  watched  over  the 
parents  will  not  forsake  the  child.  I  wish  you  could 


478  LIFE    OF    JUDGE    SMITH. 

see  him  ;  I  am  sure  it  would  give  you  pleasure.  You 
have  not  probably  forgot  the  dear  child  who  was 
drowned  in  the  Little  River,  Oct.  14,  1808.  I  can 
sympathize  sincerely  with  your  sister  and  niece  in 
the  deaths  of  beloved  children,  and  most  of  all,  with 
Mrs.  Stewart  in  the  death  of  her  only  child  Elizabeth  ; 
and  though  her  death  happened  twenty-four  years 
ago,  she  still  lives  as  freshly  in  her  mother's  remem- 
brance, as  my  daughter,  who  died  ten  years  ago,  does 
in  mine.  I  know  not  whether  it  is  peculiar  to  me, 
but  all  my  recollections  of  Ariana's  person,  character, 
and  whole  being,  have  ever  been  sweet,  and  I  hope 
salutary  to  me. 

"  I  suppose  you  have  not  heard  of  Mrs.  Tenney's 
death.  She  was  born  April  7,  1762,  and  died  May 
12,  1837,  in  her  seventy-sixth  year.  The  present, 
as  did  the  former  Mrs.  S.,  highly  esteemed  her. 
You  have  not  forgot  that  our  neighbors  did  not  do 
her  justice.  She  was  always  in  the  habit  of  intimacy 
with  us ;  towards  the  end  her  visits  were  frequent, 
and  there  was  no  abatement  in  her  powers  of  mind. 
Her  sickness  was  but  of  a  few  days'  duration,  and 
she  met  the  last  enemy  as  a  Christian  should.  She 
had  joined  our  church  probably  after  you  left.  The 
Doctor '  died  twenty-one  years  before  her.  Now 
that  I  am  speaking  of  deaths  of  friends,  I  would  add 
that  of  John  Rogers,  the  cashier  of  our  bank  in  your 
day.  He  died  two  years  ago  of  general  debility. 
Was  it  you  or  Nancy  that  went  with  me  to  Roches- 

1  Dr.  Samuel  Tenney,  a  man  of  talents  and  integrity,  and  particularly 
interested  in  scientific  pursuits.  He  had  been  a  representative  in  con- 
gress, &c. 


LIFE    OF    JUDGE    SMITH.  479 

ter,  thirty  miles,  with  Miss  M.  E and  N.  G , 

the  latter  to  meet  her  lover  ?  He  is  now  a  judge  of 
the  supreme  court  in  Maine,  a  rich  man.  The  Mrs. 
Til  ton,  of  Rochester,  to  whom  the  visit  was  made, 
died  about  two  years  ago,  without  children  —  a  valu- 
able woman.  Miss  Emery  still  remains  in  the  state  of 
single  blessedness,  with  a  lively,  cheerful  temper,  and 
prudence,  which  makes  a  small  sum,  chiefly  of  her 
own  earning,  adequate  to  her  support.  She  is  now 
one  of  my  Elizabeth's  most  intimate  friends. 

"  Our  village  is  so  changed  in  twenty  years,  that 
you  would  hardly  know  it.  It  is  much  improved  in 
appearance,  society,  and  comforts.  I  wish  you  could 
have  a  walk  in  our  alleys,  garden,  &c.  You  know 
your  sister  delighted  in  planting  ;  we  have  plenty  of 
shade,  chiefly  of  her  making.  Our  household  is  not 

very  large.  M.  J.  S ,  who  claims  descent  from 

the  late  W.  S ,  is  just  fifteen.  I  took  her  into 

the  family  seven  or  eight  years  ago.  She  is  in  the 
way  of  getting  a  very  good"  education,  is  a  handsome 
and  bright  girl.  My  object  was  to  repair,  as  well  as  I 
could,  the  injury  done  by  her  father.  You  may  judge 
somewhat  of  Mrs.  S.'s  disposition  by  her  kindness  to 
this  young  lady. 

"  Mrs.  S.'s  nurse  in  her  last  sickness,  and  house- 
keeper, and  who  died  in  the  family,  an  excellent 
woman,  left  a  son,  now  sixteen.  I  have  sent  him  to 
the  academy.  He  is  a  bright  boy,  and  I  hope  will  do 
well.  My  three  deaf  and  dumb  nieces  are  occasion- 
ally with  us,  and  are  charming,  well-educated  women. 
Mrs.  S.  is  fond  of  society ;  we  are  seldom  without 
agreeable  visiters.  I  did  not  allow  myself  to  live 


480  LIFE    OF    JUDGE    SMITH. 

above  my  income,  even  when  without  children.  In 
that  situation  I  intended  to  found  two  or  three  scho- 
larships, for  the  maintenance  of  scholars  at  the  univer- 
sity. You  will  not  understand  from  this  that  my 
means  are  large.  I  never  coveted  riches,  and  what  I 
have  is  the  income  from  my  profession,  interrupted 
by  serving  in  congress  and  on  the  bench.  I  have 
been  always  an  economist,  and  would  be  so  if  I  had 
my  life  to  lead  over  again.  My  feelings  towards  you, 
Mrs.  S.  and  Mrs.  R.,  are  such  as  I  endeavored  to 
express  in  my  letter  of  1833,  and  I  shall  be  glad  to 
receive  at  all  times  the  most  unreserved  communica- 
tions from  you.  Give  my  best  love  to  the  other  two, 
and  accept  for  yourself  my  kindest  and  most  affec- 
tionate regards,  in  which  Mrs.  S.  most  heartily  joins 


CHAPTER  XVII. 

LETTERS ADVICE    TO    JOEL  FURBER JUDGE    SMITH 

SELLS    HIS    PLACE  AT    EXETER RESIDES  IN  DOVER 

RELIGIOUS    VIEWS    AND    CHARACTER LAST  ACTS 

SICKNESS  DEATH. 

JUDGE  SMITH  got  through  the  winter  of  1839-40 
without  any  recurrence  of  the  attack  from  which  he 
had  suffered  the  winter  before,  and  found  himself  in 
the  spring  unusually  well.  In  a  letter  to  Miss  Ellen 
Smith,  after  speaking  of  the  death  of  a  child  in 
whom  they  were  interested,  he  says  —  "  We  seem  to 
live  in  a  world  where  sorrows  and  joys  are  intermix- 
ed, and  perhaps  the  one  is  as  necessary  as  the  other. 
.  .  .  How  are  your  good  father  and  mother?  Are 
we  never  to  see  them  again  ?  As  the  circle  of  friends 
narrows,  our  interest  in  those  within  increases,  so 
that  we  have  the  same  portion  of  kind  feelings  to 
soften  the  rugged  scenes  of  life.  ...  It  is  said  we 
love  our  friends  best  when  they  are  dead ;  their  thou- 
sand merits  then  break  forth,  &c.  I  don't  know  how 
this  may  be.  I  am  not  sure  we  don't  love  them  best 
at  a  distance.  Their  merits  take  a  prominent  place, 
and  their  faults  sink  in  the  distance,  and  yet  how  can 
41 


482  LIFE    OF    JUDGE    SMITH. 

this  apply  to  you  who  have  no  faults,  and  are  besides 
always  present  with  me,  and  whom  I  love  equally,  at 
all  times  and  in  all  places  ?  I  believe  we  are  made 
up  of  contradictions.  However  that  may  be,  without 
contradiction  and  without  paradox,  I  am,  as  always, 
your  affectionate  friend,  J.  S." 

Extracts  from  letters  to  Mrs.  Smith.  "  Exeter, 
June  18,  1840.  I  received  (in  a  visit  to  Boston)  all 
the  attention  I  would  allow,  and  enjoyed  the  rides  all 
round  exceedingly.  You  know  I  love  the  earth  as 
well  as  its  productions.  I  love  the  vegetable  as  well 
as  the  animal  kingdom,  in  an  inferior  degree,  how- 
ever." June  24.  "  My  friend  and  his  wife, 

from  the  insane  hospital,  have  just  gone.  She  seems 
the  more  rational  of  the  two,  and  is  a  very  pretty 
woman.  They  are  very  poor,  and  I  pity  them,  and 
have  done  my  best  to  make  a  few  hours  of  their 
life  as  pleasant  as  possible."  June  27th.  "  The  last 
part  of  your  letter,  — '  I  am  quite  comfortable  this 
morning,  and  feel  that  I  am  getting  better,' —  is  very 
good ;  but  you  do  not  know  how  much  you  lose. 
Our  place  is  beautiful  —  never  better.  You  will  lose 
a  year ;  but  I  suppose  you  are  saying,  « Elizabeth, 
thou  hast  many  years  in  store,'  &c.  Heaven  grant  it 
may  be  so.  Jeremiah  is  very  well  —  happy  as  a 
prince.  We  get  along  very  well.  If  either  of  my 
three  favorites,  Mary,  Ellen,  or  the  dear  Sarah,  were 
only  to  come,  I  should  be  too  happy.  But  I  will  not 
let  my  enjoyments  depend  too  much  on  others,  and  I 
recommend  the  same  to  you.  I  have  no  doubt  we 
can,  if  we  will,  cultivate  this  spirit  of  independence. 
You  think  I  have  too  much  of  it ;  experience  has 


LIFE    OF    JUDGE    SMITH.  483 

taught  it  me.  It  only  means  non-dependence  on 
the  weak  and  wayward.  There  is  no  danger  from 
dependence  on  the  wise  and  prudent  few."  "  I  hope 
my  friend  did  not  use  my  name  in  his  applications  to 
your  friends.  He  spoke  of  taking  Dover  in  his  way 
home.  I  suspect  the  spunging  was  his  sole  object. 
God  forgive  me  ;  but  I  never  liked  beggars.  I  do 
not  see  why  he  cannot  earn  his  living.  His  style  of 
asking  is  that  of  a  practised  beggar." 

"  August  3.  I  attended  church  this  forenoon,  and 
apply  myself  this  afternoon  to  Robert  Hall.  The 
dead  man  preaches  better  than  the  living  one.  My 
printed  sermons  are  always  far  better  than  any  I 
hear.  This  is  one  of  the  few  subjects  in  which  I  am 
willing  to  differ  from  you,  because  I  would  not  lessen 

your  enjoyments 4th.  I  think  I  shall  go 

through  the  whole  volume  ;  and  yet  such  reading 
tends  to  make  me  less  satisfied  with  the  preaching 
and  society  of  less  gifted  men.  .  .  .  He  was  certainly 
a  man  of  genius.  How  few  such  in  his  profession  ! 
And  how  fortunate  that  it  is  so  !  They  are  not  safe 
guides,  and  cannot  be  happy  with  a  stupid  people, 
which  truly  characterizes  the  bulk  of  mankind." 

To  Mrs.  Walker.  «  Sept.  22,  1840.  A  few  days 
only  have  passed  since  we  heard  of  the  death  of  your 
much  loved  son.  From  the  reports  of  his  case  that 
had  reached  us,  we  were  not  taken  by  surprise. 
Ever  since  we  understood  his  case,  we  have  felt  in- 
tensely for  you  and  all  the  survivors,  but  most  for 
you.  The  closing  scene  must  have  been  to  you  a 
merciful,  though  a  painful  one.  I  have  not  forgot 
my  feelings  on  a  similar  occasion,  and  I  hope  your 


484  LIFE     OF     JUDGE     SMITH. 

better  heart  does  not,  as  mine  did,  for  a  short  time, 
indulge  in  murmurs  against  the  hand  from  which 
these  calamities  come.  We  must  not  attempt  to  scan 
the  causes  of  these  severe  afflictions,  but  content  our- 
selves with  the  belief  that  all  is  wise  and  just  and 
good.  It  is  wisely  ordered  that  your  own  reflections 
will  gradually  bring  the  comfort  and  consolation  you 
need.  A  friend  can  sympathize,  and  that  is  not 
without  its  uses  ;  but  the  afflicted  soul  must  bear  the 
sufferings  alone.  I  pray  God  you  may  have  the  con- 
solations which  he  can,  and  friends  cannot,  bestow. 
You  will  soon  learn  to  appreciate  as  a  comforter  the 
excellent  worth  of  the  object  taken  from  you,  and  the 
resignation  and  Christian  feelings  of  the  dear  sufferer. 
We  must,  and  so  I  thought  in  my  case  eleven  years 
ago,  believe  in  the  influences  of  the  Divine  Spirit  on 
the  mind  of  the  dear  sufferer.  Without  this,  it  is 
impossible  to  account  for  what  you  must  have  wit- 
nessed in  your  son. 

"  But,  dear  Sarah,  though  we  cannot  bear  your 
afflictions,  we  are  desirous  of  having  you  with  us, 
that  we  may  do  all  we  can  to  alleviate  them.  The 
bustle  of  the  summer  is  ended  and  gone  ;  we  shall 
soon  part  with  Joel,  who  goes  to  St.  Louis  in  three 
weeks  ;  our  family  will  be  small,  and  we  have  room, 
plenty  and  quiet.  Elizabeth's  health  I  think  better, 
and  she  is  relieved  from  her  attendance  on  her 
mother,  who  is  now  much  better.  My  own  health 
was,  I  think,  never  better,  and  it  is  no  part  of  a  wise 
or  a  religious  man  to  let  these  good  things  pass  unen- 
joyed.  I  can  think  of  nothing  to  add  to  mine  so 
much  as  your  society." 


LIFE     OF     JUDGE     SMITH.  485 

Joel  Furber,  who  is  referred  to  in  this  letter,  and 
of  whose  short  life  a  sketch  has  already  been  given, 
left  Exeter  for  St.  Louis,  the  10th  of  October,  1840. 
The  paper  of  advice  which  Judge  Smith  gave  at  that 
time  to  this  fatherless  and  motherless  boy,  is  so  full 
of  wise  instruction,  the  fruit  of  many  years'  experi- 
ence, and  is  marked  by  so  warm  and  kind  an  interest, 
that  I  insert  it  here  entire,  both  as  a  guide  to  other 
young  men,  and  for  the  honor  which  it  throws  back 
on  him  who  wrote  it. 

To  Joel  Furber.  "  In  May,  1837,  from  respect  to 
the  memory  of  your  mother,  and  from  an  opinion  that 
your  capacity  was  a  good  one,  I  determined  to  give 
you  an  academical  education.  I  thought,  if  you 
made  a  good  improvement  of  your  time,  you  might 
in  two  or  three  years  get  such  an  education  as  might 
enable  you  to  go  through  life  in  a  respectable  situa- 
tion. I  did  not  intend  to  pledge  myself  for  the  fu- 
ture ;  all  was  to  depend  on  the  discoveries  time  might 
make.  Hitherto  you  have  not  disappointed  my  ex- 
pectations, and  the  time  has  now  come  when  your 
age  and  education  fit  you  to  enter  on  the  world. 

"  I  shall  furnish  you  with  testimonials  of  character 
and  with  letters  to  my  friends  in  the  west,  to  assist 
you  in  finding  employment,  and  with  advice  till  your 
own  knowledge  and  experience  may  be  sufficient  to 
guide  you.  And  here  it  may  be  proper  to  say  that 
your  chief  dependence  under  heaven  must  be  upon 
yourself.  Persons  of  your  age,  though  not  generally 
wanting  in  a  good  opinion  of  themselves  and  the 
world,  seldom  realize  how  little  friends  are  disposed 
to  do,  or  indeed  can  do,  to  promote  their  success  in 
41* 


486  LIFE      OF     JUDGE      SMITH. 

life.  It  is  in  finding  employment,  or  in  what  regards 
the  first  step,  they  will  be  found  useful.  When  your 
character  and  disposition  are  fairly  developed,  you 
must  rely  on  these  to  procure  you  business  and 
friends ;  too  much  recommendation  and  assistance 
are  sometimes  productive  of  evil  instead  of  good.  A 
little  suffering  —  difficulties  to  be  overcome  —  a  little 
mortification  from  the  indifference  and  neglect  of 
friends,  are  sometimes  better  than  their  opposites. 

"  It  is  indispensable  that  you  start  in  life  with  a 
correct  estimate  of  yourself.  Be  sure  not  to  think  of 
yourself  '  more  highly  than  you  ought  to  think,'  and 
that  as  regards  your  personal,  mental  and  moral  qual- 
ities. If  you  err  here,  you  are  sure  to  be  corrected, 
and  may  perchance  suffer  a  little  mortification  in  un- 
dergoing the  discipline  of  the  world's  school.  It  may, 
however,  do  you  a  great  deal  of  good.  It  is  not  my 
meaning  that  you  should  err  on  the  other  hand,  and 
think  too  meanly  of  yourself,  and  of  your  powers  of 
mind,  and  moral  strength.  This  would  discourage 
and  weaken  your  efforts.  In  the  journey  of  life  you 
will  need  all  the  strength  you  have,  and  you  must  feel 
that  you  have  it.  A  low  estimate  of  self  might  dis- 
courage, and  a  high  one  beget  presumption  —  both 
are  alike  to  be  avoided. 

"  Depend  upon  it,  that  vulgar  thing  called  labor, 
pains,  care  and  diligence,  gives  better  security  for 
success  in  the  world  —  indeed,  for  the  acquisition  of 
everything  good,  than  ability  and  learning.  In  your 
academical  life  you  must  have  seen  something  of  this 
value  of  application  ;  the  register  is  no  index  to  the 
minds  and  talents  of  the  scholars.  The  high  marks 


LIFE     OF     JUDGE     SMITH.  487 

are  given  not  to  capacity,  but  to  labor,  attention  and 
diligence  in  study.  The  world  also  keep  a  register, 
and  adopt  the  same  rule  in  marking.  I  hope  you 
will  aim  at  '  8s,' ]  and  '  highly  creditable.' 

"  You  will  find  the  advantage  of  the  modest  self- 
estimate  I  recommend,  in  the  very  outset  of  your 
career.  It  will  lead  you  not  to  despise  employment 
as  too  low  for  your  capacity  and  merits.  Depend 
upon  it,  when  you  have  exhibited  to  the  world  the 
evidence  of  your  fitness  for  the  highest  employments, 
you  will  have  them.  But  supposing  your  estimate  of 
self  to  be  a  proper  one,  there  is  another  error  I  have 
seen  discreet  and  sensible  young  men  fall  into.  I 
mean  the  too  great  hurry  to  seize  the  prizes  —  the 
rewards  of  labor  before  they  are  earned.  I  would 
have  you  earnest,  zealous,  ardent  in  the  acquisition 
of  all  the  good  you  propose  to  yourself.  You  should 
have  praiseworthy  objects  always  before  your  eyes, 
and  diligently  pursue  them  —  you  must  never  weary 
in  well-doing,  but  at  the  same  time  you  must  moder- 
ate your  expectations,  and  remember  that  a  sanguine 
temper  of  mind  is  likely  to  end  in  mortification  and 
disappointment,  and  so  discourage  exertions. 

"  No  good  thing  is  obtained  without  time.  The 
best  things  are  of  the  slowest  growth.  This  is  the 
order  of  nature,  and  you  can  hardly  expect  nature 
will  change  for  your  special  accommodation.  I  have 
myself  observed  that  those  who  hasten  to  be  rich  and 
learned,  in  the  end  are  poor  and  ignorant. 

"  But  there   is  another  thing  in  which  I  am  not 

1  The  highest  mark  at  the  academy. 


488  LIFE     OF     JUDGE     SMITH. 

without  suspicions  of  you.  I  mean  an  unsteady, 
wavering  temper  of  mind.  You  may  have  obstinacy 
enough  when  you  happen  to  be  in  the  wrong,  but 
have  you  firmness  and  perseverance  enough  when  in 
the  right  ?  I  have  known  persons  not  wanting  in 
judgment,  but  who  were  constant  in  nothing  but 
changes  —  ever  adopting  new  courses  of  business  — 
rying  them  for  a  short  space,  but  not  giving  them  a 
fair  trial,  and  then  abandoning  them  for  some  new 
project.  This  is  a  very  great  as  well  as  a  very  com- 
mon error,  and  accounts  for  many  of  the  failures  in 
life  I  have  witnessed.  Be  slow  in  adopting  your 
plans  —  carefully  observe  their  working,  and  perse- 
vere in  them  till  your  judgment  is  clearly  convinced. 
I  have  seen  a  laborious  and  painful  life  wasted  —  all 
for  the  want  of  a  little  more  '  patient  continuance  in 
well-doing.' 

"  I  have  recommended  to  you  a  just  opinion  of 
self — rather  too  low  than  too  high  —  but  the  case  is 
different  as  it  regards  the  opinions  you  form  of  others. 
Here  it  is  better  to  err  on  the  other  side.  Charity 
and  politeness  require  you  should  think  favorably  of 
your  acquaintance ;  and  where  you  cannot  do  this 
be  sure  to  keep  your  thoughts  to  yourself.  This  tem- 
per of  mind  is  perfectly  consistent  with  personal  inde- 
pendence and  decision  of  character.  You  must  on 
no  account  sacrifice  these.  There  is  a  satisfaction  in 
them  which  the  wavering,  and  unsteady,  and  infirm 
of  purpose  can  never  know. 

"  As  a  youth,  your  deportment,  as  far  as  I  know, 
has  always  been  distinguished  for  modesty  and  civil- 
ity, especially  towards  the  aged.  When  I  see  the 


LIFE     OF     JUDGE     SMITH.  489 

reverse,  as  I  often  do,  I  augur  ill  of  the  youth :  and 
have  seldom  seen  him  grow  into  a  respectable  man. 
"  It  is,  perhaps,  strongly  enough  expressed  already, 
that  I  would  have  you  active,  industrious,  wide  awake. 
You  have  hitherto  hardly  had  an  opportunity  to  test 
your  active  powers,  mental  or  bodily.  I  hope  you 
have  a  good  share  of  them.  There  is  now  a  call  for 
them.  You  must  now  depend  on  yourself,  and  be 
assured  if  you  sleep  you  perish.  You  will  at  first 
find  yourself  a  little  awkward  in  your  new  situa- 
tion—  no  one  to  advise  —  to  remind  —  to  direct  — 
no  arm  but  your  own  to  lean  on.  I  have  seen  young 
men  so  situated,  pursue  different  courses :  one  class 
girded  themselves  for  the  race  —  put  out  all  their 
strength,  and  though  from  inexperience  committing 
many  errors,  yet  daily  rising  in  the  world,  and  finally 
attaining  a  high  character  and  a  respectable  place  in 
society  ;  —  the  other  class,  from  timidity,  love  of  idle- 
ness or  from  something  worse,  soon  sinking  into  dis- 
grace, and  becoming  members  of  that  class,  who 
prefer  living  upon  others,  to  earning  a  living  for  them- 
selves. Idleness  is  the  ruin  of  more  young  men  than 
any  other  sin  that  besets  them,  or  than  all  others  put 
together  ;  indeed,  it  is  not  long  a  single  vice.  It 
draws  after  it  a  thousand  others.  The  idle  fellow 
must  have  company,  and  his  companions  will  be  sure 
to  be  idle  fellows  like  himself.  The  excitement  of 
drinking,  if  excitement  it  may  be  called,  will  soon  be 
resorted  to,  and  every  other  kind  of  dissipation  will 
soon  be  added  thereto.  When  I  hear  you  are  idle  — 
destitute  of  employment  —  are  rambling  about  from 
place  to  place  under  pretence  of  seeking  it,  I  shall 


490  LIFE     OF     JUDGE     SMITH. 

have  before  my  mental  eye  a  complete  map  of  your 
whole  life.  I  shall  see  the  end  of  the  man,  in  whose 
welfare  I  have  taken  so  deep  an  interest.  It  must 
needs  be  that  you  will  come  in  contact  with  the  dissi- 
pated. Shun  them  as  you  would  persons  infected 
with  the  plague.  You  must  have  seen  in  the  acad- 
emy many  young  lads  of  good  parts,  who  have  suf- 
fered disgrace  from  this  cause  alone.  It  has  always 
appeared  to  me  wonderful  that  idleness  should  seduce 
any  one.  To  me  it  has  seemed  ever  odious  and  dis- 
gusting. A  lazy  man  is  my  utter  aversion. 

"  On  reading  this  to  Mrs.  Smith  she  desires  me  to 
add  to  the  catalogue  of  '  the  evitanda,'  the  dangerous 
practice  of  running  in  debt.  She  would  have  you 
avoid  debts  as  you  would  any  other  kind  of  servitude. 
I  have  known  many  who  might  justly  ascribe  their 
ruin  to  this  practice.  It  includes  (and  I  would  have 
you  exclude)  all  kinds  of  speculation.  Get  what  you 
get  by  honest  labor  and  honest  business.  A  little 
thus  gotten  is  better  than  a  mickle  got  by  specula- 
tion. This  has  always  been  my  way  of  thinking.  I 
believe  I  never  speculated  to  the  amount  of  a  single 
dollar,  for  which  I  desire  to  be  thankful  to  a  kind 
Providence. 

"  I  recommend  to  you  early  to  acquire  the  habit  of 
economy,  whether  your  gains  or  means  be  great  or 
small.  Indeed,  in  this  way  a  small  estate  answers 
all  the  purposes  of  a  great  one.  And  connected  with 
this,  I  would  have  you  cultivate  habits  of  order  and 
care  in  all  your  business  and  concerns.  The  way  to 
grow  rich  is  not  by  earnings,  but  by  careful  keeping 
and  prudent  spending. 


LIFE     OF     JUDGE     SMITH.  491 

"  I  have  said  nothing  of  religion  and  good  morals. 
Attention  to  them  is  indispensable.  You  cannot  do 
without  religion  ;  and  if,  haply,  you  find  the  right 
sort,  your  morals  cannot  fail  to  be  pure  and  good. 

"  I  can  only  add  that  as  to  these  loose  hints,  drawn 
up  without  any  regard  to  order  or  method,  I  expect 
little  from  them.     I  rely  much   more  on  your  own 
good  sense  and  good  habits  to  conduct  you  in  the  , 
paths  of  wisdom  and  prudence. 

"  If  you  have  any  desire  to  repay  the  little  I  have 
done  for  you  in  the  last  fifteen  years,  there  is  no  way 
in  which  you  can  do  it  so  much  to  my  satisfaction  as 
by  continuing  to  act  wisely  and  discreetly  for  your- 
self. 

"  Be  an  honest  and  virtuous  man,  and  I  shall  be 
proud  of  you,  and  continue  to  pray  that  God  may 
bless  you  and  preserve  you  here  and  hereafter.  1st 
October,  1840." 

To  Mrs.  Smith.  "  Tremont  House,  Boston,  16th 
May,  1841.  Sunday,  P.  M.  My  dear  wife:  Mr. 
F.  called  immediately  after  dinner,  and  deprived  me 
of  the  afternoon  service.  He  is  just  gone,  and  I  de- 
vote half  an  hour  to  thee.  I  am  sure  it  is  spending 
my  time  well,  for  there  is  no  evil  connected  with  so 
pure  a  subject.  I  heard  an  excellent  sermon  this 
morning  from  Mr.  G.,  on  the  evils  and  dangers  of 
wealth,  and  rejoiced  that  I  was  safe  on  that  score.  I 
am  not  sure  I  should  maintain  my  integrity  when 
tempted  by  riches I  find  not  a  single  com- 
panion in  this  great  house  of  eighty  or  a  hundred. 
The  city  is  as  quiet  as  the  grave.  These  two  days 
have  refreshed  me  mightily,  and  I  am  very,  very  well. 


492  LIFE     OF     JUDGE     SMITH. 

....  I  find  I  have  lost  all  my  ambition.  I  used 
to  desire  to  make  a  favorable  impression  on  my  Bos- 
ton friends.  Now  I  am  quite  indifferent  —  not  that 
I  love  them  less,  but  myself  more.  I  believe  age  is 
selfish.  There  is  little  to  stimulate  desire  ;  but  1  do 
not  love  you  the  less,  and  shall  appreciate  Exeter  the 
more  from  this  little  excursion." 

To  Miss  Ellen  Smith.  "Exeter,  29th  October, 
1841.  Only  think,  dearest  Ellen,  I  have  not  seen 
you  for  a  whole  year,  and  how  great  a  proportion 
does  this  same  year  bear  to  my  whole  life  to  come. 
The  tables  of  life  give  a  fraction  only  above  three 
years,  and  it  may  prove  less  than  three  days.  I  beg 
you  would  consider  this  seriously,  (for  it  is  a  serious 
thought,)  and  act  accordingly.  I  suppose  there  is 
nothing  strange  in  the  fading  away  of  my  desire  for 
locomotion.  I  certainly  intended  to  visit  Peterbo- 
rough in  the  autumn.  The  indisposition  of  my  friends 
with  you,  as  well  as  my  own  prevented,  and  I  have 
now  half  persuaded  myself  that  all  old  creatures  are 
best  at  home.  Perhaps  my  conclusion,  that  there- 
fore you  must  come  here,  is  not  strictly  warranted  by 
the  premises.  I  have  a  fancy  that  I  am  most  agree- 
able at  home.  Come  then,  my  dearest  Ellen,  and 
make  us  happy,  if  only  for  a  month.  Leave  all  your 
duties  and  cares  with  Sarah.  Your  modesty  will  not 
allow  you  to  think  these  duties  will  be  worse  dis- 
charged. The  more  I  see  of  her,  the  less  I  should 
be  inclined  to  fear  it.  It  is,  besides,  selfish  in  you  to 
engross  all  these  amiable  virtues.  Let  all  your  friends 
participate  in  your  enjoyments.  A  good  lawyer 
would  make  more  of  the  argument.  Think  of  the 


LIFE     OF     JUDGE     SMITH.  493 

pleasure  you  would  give  Mrs.  Smith  and  Jeremiah, 
and  how  useful  your  society  would  be  to  Jane." 

"  I  ought,  my  dear  sir,"  he  said  to  another  corres- 
pondent, 13th  November,  1841,  "long  since  to  have 
acknowledged  your  letter.  This  duty  has  often  been 
in  my  mind,  but  its  effectual  performance  depended 
on  another  thing,  and  that  has  been  neglected.  It 
is  indeed  a  poor  excuse  for  neglecting  this,  and  yet, 
somehow  or  other,  when  we  have  two  connected  du- 
ties to  perform,  we  are  apt  to  neglect  one  because 
we  have  neglected  the  other,  and  feel  easier  under  a 
double  than  under  a  single  fault." 

In  a  letter  to  Mrs.  Smith,  written  about  the  same 
time,  after  mentioning  some  unkind  words  which  had 
been  spoken  years  before,  he  adds  :  "  Provoking  this, 
and  now  remembered.  Would  it  not  be  for  the 
peace  of  the  world  to  have  an  act  of  oblivion  passed 
every  six  years,  corresponding  with  our  statute  of 

limitations  ?  was  to  deliver  a  caucus  speech, 

&c.  How  much  good  temper  have  I  gained  or  kept 
by  the  little  interest  1  have  taken  at  all  times  in  poli- 
tics. I  suppose  I  could  not  have  done  it,  if  I  had 
not  taken  a  great  deal  of  interest  in  something  else, 
that  was,  my  profession  and  a  moderate  provision  for 
age  and  family." 

To  Miss  Lowe.  "  22d  January,  1842.  My  dear 
Mary  :  I  was  sick,  and  you  visited  me  not. 

"  The  contrast.  Three  days  ago,  when  alone  in 
my  room,  and  engaged  in  adorning  myself,  my 
eyes  on  the  glass,  a  female  figure  entered,  and 
seated  herself  on  the  other  side  of  the  table.  I  sup- 
posed it  was  Jane,  dressed  for  the  village,  and  wait- 
42 


494  LIFE     OF     JUDGE      SMITH. 

ing  for  my  commands  ;  but  a  second  glance  showed 
a  figure  and  dress  of  higher  pretensions  —  the  person 
a  stranger.  My  curiosity  was  a  little  excited,  and  I 
addressed  the  beautiful  unknown.  She  spoke  in  a 
disguised  voice.  I  begged  her  to  remove  the  veil, 
which  she  did,  and  behold  S.  S.  H.  stood  before  me. 
She  had  heard  the  day  before  that  her  friend,  the 
Judge,  was  sick  ;  her  call  was  the  consequence.  She 
found  her  friend  relieved  from  the  first  indisposition, 
but  so  blind  with  sore  eyes,  that  he  could  hardly  see 
the  bright  vision  before  him.  She  returned  the  same 
evening. 

"  Mary  was  '  intending  to  write  sooner ;  doubts 
whether  she  will  be  able  to  stay  away  three  months 
longer  ;  her  time  is  now  wanted  to  read  novels  to  Miss 
C.,'  &c.  These  are  my  female  friends.  Your  sex, 
you  know,  is  a  thousand  times  more  compassionate 
than  mine.  For  your,  read  some  of  your  sex  ;  for 
example,  Ellen  the  good.  '  I  was  up  this  morning 
long  before  the  sun,  that  I  might  write  you  before  the 
mail  goes  out.  I  regretted  exceedingly  to  hear  that 
you  were  afflicted  with  another  of  your  severe  colds. 
How  much  1  wished  to  be  with  you,  and  particularly 
at  a  time  when  I  could  be  useful  to  those  I  love.' 
Was  it  not  Mrs.  M.  who  said  <  there  is  a  difference 
in  women  ? '  I  will  not  offend  against  my  judgeship 
by  a  hasty  decision.  The  appearance  of  things,  as  it 
regards  affection,  is  certainly  against  my  Mary.  But 
no  doubt,  (at  least  I  am  willing  to  believe  so,)  she 
has  good  reasons  for  her  conduct.  I  have  been  really 
and  truly  sick,  and  my  eyes  yet  leave  me  entirely  at 
the  mercy  of  Elizabeth  and  Jane  for  food  for  the 


LIFE    OF    JUDGE    SMITH.  495 

mind.     They  are  very,  very  good,  but  both  afflicted 
with  bad  colds." 

To  Miss  Hammond  he  wrote,  January  24  :  "  How 
shall  I  thank  you  as  I  ought,  for  your  visit  of 
Wednesday  ?  If  good  acts  carry  their  own  reward, 
you  must  be  doubly  happy.  I  am,  in  consequence, 
quite  well,  with  the  exception  of  two  eyes,  that  have 
already  seen  their  share  of  earthly  good." 

On  the  7th  of  February,  1842,  Judge  Smith  sold 
his  place  in  Exeter,  possession  to  be  delivered  the 
1st  of  April.  To  some  of  his  friends,  it  was  hard  to 
think  of  the  alienation  of  an  estate  which  had  been, 
in  their  minds,  associated  with  him  for  so  many 
years,  and  made  sacred  to  them  by  the  memory 
alike  of  the  living  and  the  dead.  He  thought  him- 
self indifferent  to  the  change  ;  but  in  this  respect  I 
do  not  think  he  understood  himself.  In  a  letter 
written  a  few  days  before  the  bargain  was  concluded, 
he  said  :  "  Everything  goes  on  as  it  should.  The 
nights  are  not  quite  so  well.  I  do  not  sleep.  The 
meditated  change  in  domicil,  in  spite  of  my  fixed, 
stayed,  and  approving  judgment,  will,  against  my 
willj  keep  me  awake  after  the  first  sleep."  His 
reasons  for  what  he  had  done,  are  best  given  in  his 
own  words.  In  a  letter  to  Miss  Hammond,  February 
10,  1842,  he  said  :  "  My  dearest  Sarah  ;  I  need  not 
attempt  to  say  how  much  I  am  gratified  by  yours  of 
the  8th,  this  moment  received.  I  was  at  the  time 
about  to  sit  down  to  write  to  you,  and  tell  you  what 
I  had  just  done ;  something  of  importance  to  me, 
and  more  to  my  Elizabeth.  The  law  (of  nature) 
says,  that  my  lease  of  life  must  expire  soon,  very 


496  LIFE    OF    JUDGE    SMITH. 

soon  ;  and  wisdom,  divine  and  human,  says  '  Set  thy 
house  in  order,  for  thou  shalt  surely  die.' 

"  You  know  I  am  happy  in  my  dwelling,  and  that 
I  desire  no  change,  especially  when  you  are  in  it  ; 
certainly  none  on  my  own  account ;  but  it  would  be 
a  great  shame  in  me  not  to  have  the  most  lively,  as 
well  as  the  most  kind  regard,  for  those  of  my  family 
who  will  doubtless  survive  me.  Solely  and  entirely 
on  their  account,  I  have  sold  my  house  and  farm, 
and  am  to  surrender  possession  the  1st  of  April  com- 
ing. '  To  what  place  are  you  going  ? '  I  hear  my 
Sarah  ask.  I  cannot  tell.  To  a  hiied  house  (the 
apostle,  you  know,  lived  in  his  own  hired  house,) 
here  ;  and  in  due  time  a  snug  little  cottage  in  the 
village,  to  my  native  place,  or  to  Elizabeth's  native 
place  and  her  father's  house  ;  so  far  is  decided.  To 
which  of  the  three,  1  have  left  entirely  to  Elizabeth, 
and  I  have  no  doubt  she  will  decide  wisely.  To 
me  place  is  indifferent,  so  it  be  with  my  nurse  and 
child." 

To  Miss  Ellen  Smith.  «  Exeter,  February  'x!0, 
1842.  My  dearest  Ellen  :  This  is  not  a  letter,  but 
a  few  lines  to  explain  to  you  the  reasons  of  my 
selling  the  house  over  our  heads  —  to  quit  1st  April. 
It  was  not  because  I  was  dissatisfied  with  it  —  it  was 
exactly  what  I  had  made,  and  exactly  to  my  mind  — 
but  solely  because  I  thought  it  would  trouble  those  I 
leave  behind.  For  the  same  reasons  I  left  it  entirely 
to  Elizabeth  to  say,  where  she  would  nurse  me  in  the 
short  remainder  of  life,  and  for  the  present  she  fixes 
on  a  part  of  her  father's  house  at  Dover,  and  thither 
we  go  in  about  four  weeks.  The  other  alternatives 


LIFE    OF    JUDGE    SMITH.  497 

were  to  build  a  small  house  here  or  at  Peterborough. 
This  is  the  second  wise  thing  I  have  done  in  my  long 
life.  The  first  was  to  leave  off  business  at  a  proper 
age  (sixty)  ;  and  this,  to  consult  at  a  slight  expense 
to  myself,  the  interest  and  happiness  of  those  dear 
to  me,  now  and  in  all  time  to  come.  This  removal 
will,  of  course,  detach  me  from  the  bank  and  the 
academy,  and  leave  me  nothing  to  do  but  to  visit 
you  often  at  P.,  and,  I  hope,  welcome  you  often  at 
Dover. 

"  You,  my  dearest  Ellen,  are  one  of  the  few  whose 
approval  of  every  step  I  take  I  desire.  I  am  sure 
you  will  understand  my  motives,  and  I  shall  grieve  if 
you  do  not  approve  of  my  small  sacrifice  of  my 
present  happiness  to  the  greater  good  of  wife  and 
child.  I  am  not  sure  there  is  any  sacrifice  ;  for, 
phrenologically  speaking,  I  have  no  bump  of  locality. 

"  Have  the  goodness  to  show  this  to  the  good 
Mrs.  W.,  and  such  other  of  my  friends  who  take  an 
interest  in  my  doings,  and  are  so  good  as  to  believe 
a  man  may  act  on  such  motives.  If  I  have  com- 
mitted an  error,  it  is  of  the  judgment  ;  selfish  mo- 
tives have  had  no  influence  in  this  fifth  and  last  act  of 
my  life.  God  bless  you,  my  dear  Ellen." 

In  a  letter  to  J.  H.  Morison,  begun  the  23d  and 
finished  the  28th  of  March,  he  said  :  "  I  am  at  the 
Swamscot,  in  my  own  hired  room,  since  yesterday, 
when  I  gave  Elizabeth,  Jeremiah,  Ann  and  Lizzy 
Saul  (a  favorite  domestic,)  to  the  cars  for  Dover, 
never  to  return,  except  as  visiters,  to  Exeter.  The 
fires  were  extinguished  the  same  evening,  and  a 
watcher  placed  in  the  house,  to  wait  the  arrival  of 
42* 


498  LIFE     OF     JUDGE     SMITH. 

J.  L.  Cilley,  the  new  owner,  who,  with  his  family, 
entered  into  full  possession  this  morning.  As  our 
worthy  old  acquaintance,  the  Public,  are  generally 
ignorant  of  the  motives  which  govern  the  poor  cul- 
prit at  their  bar,  and  of  the  circumstances  of  the 
case,  is  it  to  be  wondered  they  generally  judge 
amiss  ?  I  have  sent  a  memoir  justificatif  to  Peter- 
borough, addressed  to  my  friend  Ellen.  If  I  had  the 
rough  draft  before  me,  I  would  merely  copy  it  for 
you,  whose  good  opinion  will  be  an  object  of  desire, 
when  houses  and  lands  are  gone. 

"  The  tables  of  life  give  me  only  an  equal  chance 
for  two  or  three  years.  I  have  no  reason  to  doubt 
they  will  be  happy  years  anywhere  on  this  globe  of 
ours.  Locality  I  have  none  ;  but  it  occurred  to  me, 
it  would  be  cruel  to  leave  Elizabeth  and  her  son  (then 
of  seven,)  in  a  house  and  on  a  farm,  which  to  neglect 
is  to  ruin,  both  in  looks  and  value  ;  tormenting  the 
possessors,  while  the  process  of  deterioration  is 
going  on,  and  the  loss  of  the  house  and  farm  carry- 
ing with  it  the  probable  destruction  of  their  other 
inheritance.  I  easily  persuaded  myself  that  it  was 
my  duty  to  sell  my  dirty  acres  myself,  vest  the  pro- 
ceeds in  the  safest  way  I  could,  and  live,  in  the  Eng- 
lish style,  on  our  income,  surrendering  to  younger 
men  my  bank  and  academy  duties.  While  I  re- 
mained in  Exeter,  I  could  not  easily  do  so.  Hitherto 
I  have  not  been  sensible  of  any  material  lack  of  bu- 
siness capacity  ;  but  that  may  come  at  any  moment, 
and  must  come  soon.  It  is  quite  time  to  reduce 
the  points  of  contact  with  the  world  as  far  as  pos- 
sible. 


LIFE     OF      JUDGE     SMITH.  499 

"  Mrs.  S.'s  father  and  sister,  ever  since  Mrs.  Hale's 
death,  last  June,  have  needed  Elizabeth's  aid.  There 
is  an  excellent  house,  large  enough  for  us  all,  and  Mr. 
Hale  says  I  may  fit  up  a  room  to  my  own  liking,  and 
dwell  there  in  peace  and  comfort,  surrounded  by  my 
old  and  well-tried  friends  upon  the  shelves. 

"  I  never  was  an  anxious  man,  and  as  the  world 
recedes  I  shall  not  court  it,  but  content  myself  with 

being  a  looker-on.  Your  old  friend ,  lately 

died,  much  reduced  in  his  moral  and  religious  man  ; 
his  latter  days  were  spent  in  the  struggle  to  increase 
his  estate,  by  vexing  his  poor  neighbors.  I  have  no 
desire  to  increase  my  little  substance.  It  is  enough, 
and  I  will  try  to  enjoy  it  as  an  octogenarian  ought. 
I  have  been  governed  in  these  late  movements  solely 
and  entirely  by  a  sense  of  duty.  I  need  not  say  I 
am  happy ;  for  you  know  how  happy  the  perform- 
ance of  duty  makes  us  all.  I  never  stepped  out  of 
my  house  with  more  pleasurable  feelings  than  I  did 
Monday  evening,  or  more  in  charity  with  all  the 
world,  no  way  anxious  about  the  few  days  to  come. 
I  am  almost  ashamed  to  say  how  few  are  my  doubts, 
as  to  the  remnant  of  my  long  life.  {  I  have  set  my 
house  in  order.'  " 

Judge  Smith  had  now  removed  to  Dover,  and 
found  himself  pleasantly  established  there.  He  en- 
deared himself  to  the  members  of  the  family  ;  his 
intercourse  with  Mr.  Hale  was  exceedingly  pleasant 
to  them  both,  and  his  society  was  sought  and  valued, 
especially  by  the  young.  In  the  language  of  one l 

1  The  Hon.  John  P.  Hale,  whose  independent  and  manly  course,  in 
respect  to  the  extension  of  slavery,  by  the  annexation  of  Texas,  must  do 
him  infinitely  more  honor  than  the  possession  of  any  office. 


500  LITE    OF   JUDGE    SMITH. 

who  saw  much  of  him  at  that  period,  "  There  was  a 
beautiful  moral  sublimity  in  the  spectacle,  exhibited 
by  the  sage  of  a  preceding  century,  who  had  coun- 
selled with  Washington  and  his  compatriots,  all  long 
since  entered  upon  their  reward,  about  the  momen- 
tous interests  staked  upon  the  experiment  of  putting 
in  operation  the  moral  and  political  machinery  of  a 
new  government,  relaxing  and  unbending  his  giant 
mind,  to  join  in  the  innocent  pleasures  to  be  found 
in  the  society  of  the  young,  without  abating  aught 
from  the  real  dignity  of  his  character." 

An  article  on  the  judicial  appointments  of  John 
Adams,  which  appeared  about  this  time  in  the  Bos- 
ton Daily  Advertiser,  and  written,  evidently,  by  one 
eminently  qualified  to  write  on  such  a  subject,  is 
marked  by  so  true  and  affectionate  a  spirit,  that  I 
cannot  help  inserting  here  so  much  of  it  as  relates  to 
Judge  Smith,  though  I  do  not  know  the  name  of  the 
author.  After  speaking  of  Elijah  Paine,  John  Mar- 
shall, Bushrod  Washington,  John  Davis,  and  William 
Cranch,  all  of  whom  had  been  placed  upon  the  bench 
by  the  elder  Adams,  it  goes  on  thus  :  "  There  is  yet 
among  the  living  another  object  of  Mr.  Adams's  re- 
gard, and  of  his  selection  for  judicial  place,  whose  idea 
brings  to  many  who  have  long  known  him  a  rushing 
crowd  of  grateful  and  affectionate  feelings.  He  was 
in  congress  in  Washington's  time,  and  one  of  his 
greatest  admirers  '  this  side  idolatry.'  The  daily 
companion  and  bosom  friend  of  Ames,  the  cotempo- 
rary  of  Madison  and  Giles,  of  Boudinot  and  Bayard, 
of  the  Pinckneys,  and  Laughlin  Smith  ;  and  the 
familiar  associate  of  King  and  Cabot.  I  mean  Jere- 


LIFE     OF     JUDGE     SMITH.  501 

miah  Smith,  of  New  Hampshire  ;  and  let  it  be  said 
to  her  praise,  that  she  early  discerned  his  worth, 
and  gave  him  her  confidence.  Richly  did  he  re- 
turn honor  for  honor,  and  distinction  for  distinc- 
tion. If  the  recent  and  the  present  cannot  be 
looked  upon  with  satisfaction,  let  him,  and  let 
others,  feed  on  the  rich  recollections  of  the  past. 
Having  been  district  attorney  for  New  Hampshire, 
he  became,  by  Mr.  Adams's  appointment  judge 
of  the  circuit  court,  and  held  the  place  during  the 
continuance  of  that  tribunal,  and  afterwards  for 
many  years  chief  justice  of  the  state.  He  is  now 
enjoying,  at  advanced  age,  life,  and  literature,  and 
law,  with  as  much  zest  as  others  who  have  not 
numbered  half  his  years.  You  and  I  saw  him,  not 
many  years  ago,  in  a  circle  and  on  an  occasion  which 
called  forth  the  exercise  of  his  powers,  and  deeply 
affected  the  sympathies  of  all  around  him.  I  have 
witnessed  nothing  superior  to  the  pathos  with  which 
he  then  addressed  us.  Indeed  there  is  nothing 
which  strikes  the  human  eye  and  the  human  ear, 
nothing  that  touches  every  deep-toned  key  of  the 
human  heart,  more  than  '  an  old  man  eloquent  ; ' 
eloquent  with  high  truth,  eloquent  in  the  manifesta- 
tion of  the  rich  fruits  of  experience,  and  in  the  vale- 
dictory character  necessarily  belonging  to  all  he 
says  ;  eloquent  in  nervous,  manly,  strongly  conceived 
thoughts,  uttered  with  glowing  warmth,  though  by  a 
voice  not  free  from  tremulousness,  and  with  an  eye 
sparkling  through  the  moisture  of  age.  Such  he 
then  appeared  to  us  ;  and  if  we  may  not  hope  to  see 
him  again,  under  circumstances  so  affecting,  yet  let 


502  LIFE    OF    JUDGE    SMITH. 


us  hope  to  meet  him  in  more  private  scenes,  in 
health  and  spirits,  and  in  the  perennial  flow  of 
that  wit  and  pleasantry  which  so  much  distinguish 
him.  A  grateful  junior  may  say  to  him,  '  guide, 
protector,  friend,'  sertis  in  ceelum  redeas. "  l 

I  have  purposely  deferred  speaking  of  Judge 
Smith's  religious  investigations,  opinions  and  char- 
acter. He  had  been  educated  as  a  Scotch  Presby- 
terian. His  parents,  his  religious  teachers,  his  early 
associates,  and  the  college  at  which  he  was  graduated, 
were  of  that  denomination.  He  seems  to  have  been 
set  apart  by  his  friends  for  the  ministry,  and  on  many 
accounts  that  would  have  been  the  profession  of  his 
choice.  He  early  committed  to  memory  large  por- 
tions of  the  Scriptures,  and  the  favorite  studies  of  his 
youth  as  well  as  of  his  riper  years,  were  on  theologi- 
cal subjects.  He  was  not  unacquainted  with  the  great 
divines  belonging  to  the  early  age  of  the  English 
church ;  witJa  Hooker,  Chillingworth  and  Jeremy 
Taylor  ;  but  the  writers  of  a  succeeding  generation, 
though  less  comprehensive  in  their  intellectual  grasp, 
were  more  to  his  taste.  He  was  familiar  with  the 
works  of  Tillotson,  and  South,  and  Seed,  and  Seeker. 
and  acknowledged  his  obligations  for  the  important 
aid  he  had  received  from  King's  Essay  on  the  Origin 
of  Evil.  Sherlock,  he  used  to  say,  was  too  ingenious. 
and  Horsley  too  learned  for  him  ;  the  discourses  of 
Porteus  he  read  with  pleasure,  and  Blair's  Sermons. 
by  their  purity  of  style  and  sentiment,  made  up  in 


1  Since  writing  the  above,  I  have  heard  the  article  attributed  to  Mr, 
Webster. 


LIFE     OF     JUDGE     SMITH.  503 

some  measure  for  their  want  of  strength  and  solid 
instruction.  Bishop  Butler,  however,  from  his  clear, 
strong,  unanswerable  reasoning,  and  his  profound 
knowledge  of  human  nature,  and  the  laws  of  God 
as  unfolded  in  harmonious  correspondence  through 
his  word  and  his  works,  was  the  divine  whom  he 
preferred  to  all  others,  and  down  to  the  latest  period 
of  his  life,  he  continued  to  read  his  sermons  again 
and  again,  and  always  with  new  admiration.1  While 
in  congress  he  heard  Dr.  Priestley's  Lectures  on  His- 
tory, and  was  deeply  interested  in  them,  though  I  do 
not  think  that  he  valued  Priestley  very  highly,  as  a 
writer.  Thrown  into  public  life  at  a  time  when  so- 
ciety throughout  the  civilized  world  was  shaken  to 
its  centre,  and  all  the  old  landmarks  of  belief  were 
held  up  to  contempt  by  those  who  would  themselves 
be  regarded  as  the  light  of  the  world,  he  read  the 
works  of  unbelievers,  and  though  sometimes  charmed 
by  their  fascination  of  style,  he  subjected  their  rea- 
soning to  the  cool,  impartial,  searching  scrutiny  of  a 
judicial  process,  applying  to  the  evidences  of  Christ- 
ianity, the  severest  rules  of  testimony.  With  him, 
as  it  had  been  with  Judge  Parsons,  after  a  similar 
examination,  the  result  was  a  clear,  undoubting  con- 
viction of  the  truth  and  genuineness  of  the  gospels. 
But  the  more  he  thought  and  studied  on  religious 


'Judge  Smith  quoted  with  approbation  this  remark:  "Everybody 
should  read  Bishop  Butler's  Analogy  once  a  year  till  he  can  understand 
it,  and  once  a  year  afterwards  to  enjoy  it.  You  talk  of  the  wealth  of 
the  Church  of  England,  but  if  all  the  revenues  of  the  See  of  Durham 
from  the  Conquest  were  accumulated  in  one  vast  sum,  the  whole  would 
he  of  less  value  than  that  inestimable  work." 


504  LIFE      OF     JUDGE      SMITH. 

subjects,  aided  in  his  inquiries  by  the  ablest  writers, 
the  more  comprehensive  was  his  creed,  and  the  less 
importance  did  he  attach  to  any  peculiar  form  of  faith 
or  worship.  He  had  been  charmed  by  the  youthful 
and  sainted  eloquence  of  Buckminster.  His  soul  was 
moved  to  its  depths,  and  lifted  up  as  into  a  purer 
atmosphere,  by  the  writings  of  Channing.  He  used 
often  to  tell  of  hearing  him  preach  many  years  ago 
on  humility.  "  When  he  announced  his  subject," 
said  he,  "  I  thought  that  I  was  safe ;  that  it  might  be 
a  very  instructive  sermon  to  others,  and  entertaining 
to  me.  But  in  a  few  minutes,  to  my  surprise,  I  found 
that  I  must  plead  guilty  to  that  count  in  the  indict- 
ment, though  very  sure  that  it  must  be  the  only  one. 
But  as  he  went  on,  I  was  obliged  to  give  up  point 
after  point,  and  at  last  came  away  mortified  and 
humbled  at  the  consciousness  of  my  own  pride." 
Not  long  before  his  death,  he  happened  to  remain  at 
the  communion  service,  which  was  administered  by 
Dr.  Channing,  and  "  whether  it  was,"  he  said,  "  some- 
thing peculiar  in  my  feelings  at  the  time,  or  in  the 
expression  of  him  who  broke  the  bread,  I  had  never 
before  so  entered  into  the  spirit  of  the  service."  He 
was  also  delighted  both  in  public  and  private,  with 
Bishop  Cheverus,  of  the  Roman  Catholic  church, 
whose  self-denying  and  devoted  labors  for  his  "  few 
sheep  in  the  wilderness,"  he  had  witnessed  while 
spending  several  weeks  on  business  in  the  lower  part 
of  Maine.  He  remembered  as  long  as  he  lived  the 
interest  with  which  he  had  listened  to  a  sermon  by 
the  Rev.  Dr.  Alexander,  of  Princeton.  He  was 
greatly  entertained  by  the  preaching  of  Dr.  Beecher ; 


LIFE    OF    JUDGE    SMITH.  505. 

and  though  he  could  not  assent  to  all  the  doctrines 
it  contains,  held  in  high  regard  the  Book  of  Common 
Prayer.  In  speaking  of  the  Burial  Service,  he  once 
said,  that  to  have  it  read  at  his  funeral  was  almost 
enough  to  reconcile  one  to  dying. 

Judge  Smith  believed  that  there  was,  in  the  death 
of  the  Saviour,  a  significance  not  only  deeper  than 
that  which  is  attached  to  the  death  of  any  other 
teacher  from  heaven,  but  different  in  kind.  As  to 
the  nature  of  Christ,  he  dissented  equally  from  those 
who  consider  him  only  as  a  man,  and  those  who  wor- 
ship him  as  God  ;  agreeing  with  Milton  in  regarding 
him  as  the  greatest  of  created  beings,  "  the  first-born 
of  the  creation  of  God."  In  his  theological  opinions 
generally,  I  think  he  more  nearly  agreed  with  the 
matured  views  of  Milton,  than  with  those  of  any 
other  writer.  He  belonged  to  the  true  catholic 
church,  and  was  ready  to  acknowledge  any  man  as  a 
Christian  brother,  who  received  the  Scriptures  as  his 
rule  of  faith,  and  who  strove  to  mould  his  life  by 
their  spirit.  "  Yes,"  he  was  accustomed  to  say  to 
zealous  but  narrow-minded  young  men,  "  that  is  all 
very  well.  It  is  the  way  for  you  to  go,  if  you  so 
believe  in  your  heart.  But  it  is  not  the  only  way." 
And  as  he  grew  in  years,  and  his  faith  was  purified 
and  strengthened  by  trial,  he  became  still  more  cath- 
olic in  his  feelings,  attaching  more  importance  to 
Christian  fidelity,  and  less  to  the  formulas  of  creeds, 
and  the  rules  of  church  discipline.  Just  in  propor- 
tion to  his  acquaintance  with  their  practical  effects 
was  the  low  estimate  he  put  on  all  ecclesiastical  tri- 
bunals, and  particularly  those  existing  in  New  Eng- 
43 


506  LIFE    OF    JUDGE    SMITH. 

land  ;  where  men  come  together  on  business  wholly 
foreign  to  all  their  studies  and  pursuits,  with  no  fixed 
statutes,  no  authoritative  decisions,  no  established 
usages  or  fundamental  principles  even  for  a  guide, 
and  knowing  neither  how  to  examine  witnesses,  nor 
what  sort  of  testimony  to  admit.  "  I  have  heretofore 
supposed,"  he  said  in  one  of  his  latest  letters,  "  that 
nothing  could  happen  to  place  the  New  England 
ecclesiastical  judicial  character  lower  than  I  esteemed 
it ;  but  I  find  in  the  lowest  deep  a  lower  deep." 

No  one  could  more  respect  the  institutions  and 
ordinances  of  religion,  or  acknowledge  more  sincerely 
the  necessity  of  a  religious  character  and  faith.  But 
religion  he  did  not  regard  as  something  apart  by 
itself.  It  must,  he  thought,  be  inferred  from  the  gen- 
eral tone  and  complexion  of  the  life.  If  its  power  is 
in  the  soul,  it  will  breathe  out  and  make  itself  felt. 
He  believed  it  a  progressive  principle,  growing  from 
day  to  day,  especially  through  trials  and  sorrows,  and 
subduing  the  whole  man  —  thought,  affection,  con- 
duct, will  —  more  and  more  to  itself.  So  he  believed, 
and  no  one,  I  think,  can  read  his  life  in  a  truly  Christ- 
ian frame  of  mind,  without  recognizing  something  of 
this  spiritual  progress  in  his  own  character.  Let  any 
one  compare,  for  instance,  the  letter  of  consolation 
which  he  wrote  on  the  death  of  his  brother  Robert, 
in  1795,  with  that  which  he  wrote  to  Mrs.  Walker, 
on  the  death  of  her  son  in  1840.  The  one  is  very 
well ;  such  a  letter  as  an  intelligent  man,  who  had 
attended  to  the  subject,  might  write  ;  but  the  other 
no  one  would  have  written,  who  had  not  felt  in  his 
own  heart,  a  divine  consolation  and  strength.  In 


LIFE    OF    JUDGE    SMITH.  507 

like  manner  his  affections  were  all  softened,  enriched 
and  mellowed  as  by  the  influence  of  a  higher  and 
better  spirit.  He  had  been  supported  through  the 
heat  and  burden  of  the  day  ;  his  religious  trust  added 
its  brightness  to  the  cheering  prospects  that  welcomed 
him  home  to  his  retirement  from  his  active  duties ; 
and  when  the  heaviest  domestic  calamities,  one  after 
another,  in  quick  succession,  fell  upon  him,  till  he 
was  stript  of  all  his  friends,  and  left  a  solitary  old 
man,  his  cheerful  confidence  in  God  showed  that  the 
consolations  of  a  religious  faith  came  to  him  not  as 
strangers,  but  as  friends  whom  he  had  long  enter- 
tained and  loved.  Only  one  other  test  now  remained, 
and  to  that  he  was  rapidly  hastening. 

On  the  26th  of  April,  (1842),  his  brother  Samuel, 
who,  from  the  failure  of  his  intellectual  faculties,  had 
for  several  years  been  but  the  wreck  of  his  former 
self,  was  set  free  from  his  sufferings  by  death.  In 
the  letter  which  the  Judge  wrote  to  Ellen,  dated  Do- 
ver, 29th  April,  1842,  he  said,  "  I  need  not  tell  you, 
my  beloved  friend,  that  your  mother,  sisters  and  your- 
self have  my  deep-felt  sympathies  on  this  melancholy 
occasion.  I  am  obliged  to  use  the  same  words  others 
use  ;  but  I  beg  you  will  believe  that  my  feelings  to- 
wards you  and  the  family  are  not  of  the  common 
kind,  and  are  such  as  I  have  seldom  before  experi- 
enced. They  are  such  as  my  love  for  you  cannot 
but  inspire.  I  am  not  ignorant  of  your  great  labors 
and  sufferings,  and  have  been  extremely  anxious  lest 
your  strength  should  fail.  It  must  be  a  source  of 
heartfelt  gratitude  to  my  Ellen,  that  Providence  has 
enabled  her  to  fulfil  all  her  duties.  What  daughter 


508  LIFE    OF    JUDGE    SMITH. 

has  done  so  much  ?  Your  retrospections  must  be  of 
the  purest  and  most  enduring  kind.  When  the  pain- 
ful part  ceases,  may  the  pleasant  go  on  increasing  to 
the  end.  There  are  moments  now  when  I  regret 
that  I  have  been  absent  from  Peterborough  so  long. 
We  must  draw  closer  together  as  time  diminishes  our 

number Believe  me,  though  sick  in  body, 

present  with  you  in  spirit,  and  always  your  most  affec- 
tionate uncle." 

Judge  Smith  visited  Peterborough  in  June,  and 
returned  from  his  excursion  in  excellent  health. 
Writing  to  a  friend  soon  after  his  return,  he  said, 
"  You  have  heard  me  speak  of,  and  indeed  have 
seen  my  niece,  Ellen  S.  Domestic  affliction  did  not 
make  her  less  interesting.  .  .  .  Who  can  love 
sons  as  they  do  daughters?  Not  I.  No  dispa- 
ragement to  Jeremiah.  You  see  I  have  Mrs.  H. 
and  her  six  daughters  (C.  no  less  a  daughter  for  be- 
ing a  good  wife,)  in  my  mind  and  in  my  heart. 
May  it  ever  be  so.  A  bad  heart  would  be  mended, 
and  in  time  changed,  in  such  society.  But  may 
none  such  enter  this  pure  sanctuary  of  love  and  all 
that  is  good  and  amiable." 

The  last  time  I  saw  Judge  Smith  was  early  in 
July,  1842,  when  I  spent  a  day  or  two  at  Dover. 
He  seemed  in  excellent  health,  and  never  with  his 
wits  more  about  him.  There  was  perhaps  no  man 
living,  who  had  at  his  command  more  local  and  per- 
sonal anecdotes,  or  more  of  the  knowledge  not  to  be 
found  in  books,  particularly  in  relation  to  events,  or 
to  the  men  who,  whether  on  a  large  or  a  small  scale, 
had  figured  in  our  country  from  the  middle  of  the 


LIFE    OF    JUDGE    SMITH.  509 

last  century.  He  seemed  never  to  forget  what  he  had 
once  known,  but  remembered,  with  extraordinary  dis- 
tinctness, minute  particulars  in  the  family  history  of  in- 
different persons,  with  whom  he  had  little  or  no  per- 
sonal acquaintance.  The  most  remarkable  thing  in 
his  memory  was  that  it  not  only  went  back,  and 
called  up,  as  from  the  dead,  events  in  which  he  had 
been  interested,  or  subjects  which  he  had  studied 
years  before  ;  but  recalled  as  vividly  recent  impres- 
sions and  what  he  had  recently  read.  I  found  him 
in  the  cars  at  Exeter.  On  arriving  at  the  depot 
in  Dover,  there  were  two  or  three  young  ladies  wait- 
ing for  him,  and  before  reaching  home  he  was  joined 
by  perhaps  twice  that  number,  who  had  come  out  to 
meet  him.  He  appeared  in  excellent  spirits ;  in  a 
new  place  indeed,  but  with  those  to  whom  he  was 
warmly  attached  ;  "surrounded,"  as  he  said,  "  by  his 
old  and  long-tried  friends  upon  the  shelves,"  seem- 
ing perfectly  at  home,  "  in  charity  with  all  the 
world,"  and  "  in  no  way  anxious  about  the  few  days 
to  come."  There  was  no  diminution  of  interest  in 
books,  and  in  talking  of  such  as  he  had  recently 
read,  there  was  evinced  no  falling  away  of  memory, 
nor  was  there  an  indication  of  failure  in  any  of  his 
faculties,  bodily  or  mental.1  "  He  was  quite  wil- 
ling," he  said,  "  to  be  cipherized,"  and  he  fell  into 


1  "A  little  before  his  last  illness,"  said  Mrs.  Smith,  "J.  S.  for  the 
first  time  asked  me  to  nib  his  pea  for  him.  Sometimes,  within  a  few 
years,  a  sudden  film  would  come  over  his  eyes.  The  same  is  mentioned 
of  Mr.  Roscoe,  within,  I  think,  two  or  three  years  of  his  death.  We  do 
not  attend  enough  to  these  indications  of  the  breaking  up  of  the  consti- 
tution." 

43* 


510  LIFE     OF    JUDGE     SMITH. 

his  new  way  of  living  with  as  much  ease  as  if  he 
had  been  twenty-two,  instead  of  eighty-two. 

In  a  letter,  dated  July  13,  he  said,  "  I  am  quite 
well  and  happy  in  reading  Dr.  Emmons's  autobiog- 
raphy. I  think  my  forte  is  allowing  myself  to  be 
happy  in  the  way  Providence  pleases,  and  not  insist- 
ing on  choosing  the  way  and  manner  for  myself." 

The  next  day,  in  reply  to  a  letter  from  Mr.  Sparks, 
asking  "  whether  Washington  ever  wore  a  wig,"  and 
giving  him  some  valuable  historical  information,  he 
said,  —  "  Dear  sir :  It  would  give  me  great  pleasure 
to  be  able  to  put  an  end  to  the  doubts  on  the  wig 
question.  I  was  in  the  habit  of  almost  daily  seeing 
Washington,  from  1791  to  1797  ;  staid  a  night  at  his 
house  in  April  in  the  latter  year,  and  it  never  en- 
tered my  mind  that  the  great  man  did  not  wear  his 
own  hair.  No  man  was  ever  more  attentive  to  dress, 
or  had  better  taste.  The  earlocks  were  generally  or 
always  dressed,  frizzled  and  powdered.  I  can  re- 
member when  this  was  the  fashion.  I  am  a  careless 
observer  of  particulars,  as  it  regards  the  face,  eyes, 
hair ;  I  never  could  testify  as  to  the  color  of  eyes. 
My  impressions  are  decidedly  all  anti-wig. 

"  I  rejoice  at  your  success  in  collecting  materials 
for  a  history  of  our  revolution.  I  hope  you  will  lose 
no  time  in  working  them  up,  that  I  may  have  the 
pleasure  of  reading  the  work.  With  much  respect 
and  esteem,  I  am,  dear  sir,  your  obedient  servant." 

From  a  note  to  his  wife  a  few  days  later  :  "  We  are 
as  silent  as  the  grave,  to  which  some  of  us  are  hasten- 
ing. ...  I  must  devote  next  week  to  business,  but 
intend  to  do  all  things  with  moderation  ;  for  in  truth 


LIFE    OF    JUDGE    SMITH.  511 

my  task  is  easy,  I  have  never  suffered  things  to 
dam  up.  ...  I  am  lonely,  but  not  unhappy." 

His  private  affairs  were  all  arranged  as  he  thought 
would  be  best  for  his  wife  and  child.  He  resigned 
the  office  (which  he  had  held  thirty-nine  years)  of 
president  of  the  Exeter  Bank.  Mrs.  Smith  was 
staying  at  Lee,  and  in  the  latter  part  of  the  week  he 
went  from  Dover  to  Durham  in  the  cars,  thence 
walked  to  Lee,  a  distance  of  two  or  three  miles, 
passed  the  day  with  her,  was  all  gaiety  and  anima- 
tion, and  returned  in  the  evening  the  same  way. 
After  his  return,  he  said,  in  what  proved  to  be  his  last 
letter  to  his  wife,  "  You  know  Monday  is  my  day 
for  Exeter.  I  am  busy  in  my  preparation  for  my  last 
official  act.  Heaven  bless  you  and  Jeremiah,  prays 
your  husband." 

On  Monday  he  went  to  Exeter,  to  meet  the 
trustees  of  the  academy,  and  on  his  return  was  so  un- 
well that  he  wrote  the  following  letter  —  the  last  he 
ever  wrote  :  "  To  the  Trustees  of  Phillips  Exeter  Aca- 
demy. Gentlemen  :  I  find  myself  at  length  com- 
pelled to  abandon  the  hope  of  meeting  you  on 
Thursday,  and  accordingly  now  resign  both  my 
offices  of  trustee  and  treasurer.  I  had  intended  to 
accompany  my  annual  accounts  with  statements  and 
remarks,  as  my  manner  has  been,  and  if  sufficient 
health  shall  be  indulged  me,  will  take  the  earliest  op- 
portunity of  doing  so. 

"  I  shall  ever  retain  the  liveliest  sense  of  the  kind- 
ness, courtesy,  and  I  may  add  the  confidence,  I  have 
at  all  times  experienced  in  connexion  with  you.  I 
pray  heaven  to  guide  you  in  all  your  future  delibera- 


512  LIFE    OF    JUDGE    SMITH. 

tions,  and  that  you  may  continue  to  execute  your 
sacred  trust  with  diligence  and  fidelity." 

Wednesday  a  physician  pronounced  his  disease  a 
slow  fever.  For  two  or  three  weeks  he  was  able  to 
be  dressed,  and  sit  up  part  of  the  day  ;  many  times 
every  symptom  would  be  favorable,  and  then  again 
new  and  distressing  pains  would  arise.  His  suffer- 
ings were  exceedingly  acute.  But  he  did  not  com- 
plain enough  to  make  his  case  fully  known  to  his 
physician,  and  his  humor  remained  with  him  to  the 
last.  Mrs.  Smith  having  once  been  called  below  to  see 
some  one  whom  he  thought  more  flippant  than  pro- 
found, said  on  her  return,  "  He  promised  not  to 
detain  me,  but  he  did,  and  I  verily  believe,  that  when 
he  begins  to  talk,  his  tongue  runs  so  fast  he  cannot 
stop  it."  "  It  may  well  run  fast,"  said  the  Judge,  "  it 
carries  little  weight." 

On  the  15th  of  August  his  brother  James,  of  Cav- 
endish, Vermont,  the  father  of  Mrs.  Walker,  died  at 
the  age  of  eighty-six,  and  eleven  days  after  he  was 
followed  by  Mrs.  Walker  herself ;  the  woman  so 
dear  to  Judge  Smith,  so  beloved,  so  rich  in  all  the 
best  affections  and  charities  of  a  Christian  life.  On 
the  29th  of  August,  Judge  Smith's  only  surviving 
brother,  Jonathan,  a  man  in  whom  all  the  elements 
were  most  kindly  mixed,  for  many  years  a  pillar  of 
the  town,  and  who  had  seemed  as  much  a  part  of  it 
as  its  hills,  was  suddenly  taken  away.  It  was  some 
time  before  Judge  Smith  was  informed  of  their  death. 
But  one  day,  when  he  seemed  unusually  strong,  and 
made  some  inquiries  about  Mrs.  Walker,  he  was  told 
that  she  was  gone.  He  seemed  moved,  but  agreed 


LIFE    OF    JUDGE    SMITH.  513 

with  Mrs.  Smith,  that  no  one  could  do  so  much  for 
others  without  destroying  her  own  life.  He  then 
asked  about  his  brother  Jonathan,  and,  on  being  told 
that  he  was  no  more,  he  replied  with  much  emotion, 
"  Well,  he  was  a  good  man,  and  lived  to  a  good  old 
age.  I  wish  I  was  lying  in  the  quiet  grave  with 
them."  He  afterwards  expressed  his  thanks,  that 
Mrs.  Walker's  father  still  had  a  son  to  watch  by  him, 
and  when  told  that  he  too  had  been  taken,  he  re- 
plied with  earnestness,  "  Good  !  blessed  be  God." 

From  the  beginning,  even  when  the  symptoms  of 
his  disease  were  not  particularly  alarming,  he  seemed 
to  have  a  strong  presentiment  that  he  should  not  re- 
cover. Once,  on  his  wife's  reading  to  him  some- 
thing of  his  which  she  had  just  written  down,  he  said 
with  great  solemnity,  "  Perhaps  this  is  the  last  saying 
of  mine  that  you  will  ever  record."  Two  or  three 
weeks  before  his  death  he  sent  for  her  in  the  night, 
and  said,  "  Elizabeth,  you  will  find  me  much  altered  ; 
I  am  going  very  fast,  and  I  want  you  to  thank  God 
for  it." 

During  his  illness  he  was  tried  by  excruciating 
pains  ;  but  no  one  heard  from  his  lips  an  impatient 
word.  One  night,  while  suffering  severely,  and  after 
having  said  but  little  for  some  time,  he  repeated  dis- 
tinctly, and  with  that  perfection  of  emphasis  for 
which  he  was  so  remarkable  : 


God  of  my  life,  look  gently  down  ; 

Behold  the  pains  I  feel ; 
But  I  am  dumb  before  thy  throne, 

Nor  dare  dispute  thy  will." 


514  LIFE    OF   JUDGE    SMITH. 

To  the  domestics,  who  waited  upon  him,  he  show- 
ed always  a  sense  of  gratitude  for  their  kindness. 
"  May  God  reward  you,"  he  said,  "  for  your  atten- 
tions. I  will  do  what  I  can."  He  had  no  fear  of 
death.  "  I  have  long,"  he  said,  "  considered  myself 
a  minute  man,  like  the  soldiers  in  our  revolutionary 
war,  ready  to  go  at  a  moment's  warning."  Death 
was  familiar  to  his  thoughts,  and  not  to  be  viewed 
with  alarm,  but  as  the  beautiful  dispensation  of  God. 
On  being  asked,  the  morning  before  he  died,  whether 
he  had  any  fears,  he  replied,  "  no,  no." 

Mrs.  Smith  was  prevented  by  a  fever  from  being 
with  him  the  last  two  or  three  days  of  his  life. 
When  his  nurse,  a  devout  Methodist,  repeated  to 
him,  a  few  hours  before  he  died,  the  oft-repeated 
words, 


"  Jesus  can  make  a  dying  bed, 
Seem  soft  as  downy  pillows  are," 


he  four  times  made  a  motion  of  assent,  and  when 
she  completed  the  stanza, 

"  While  on  his  breast  I  lean  my  head, 
And  breathe  my  life  out  sweetly  there," 

he  again,  though  he  could  not  speak,  inclined  his 
head  four  times,  and  smiled  with  evident  pleasure. 
He  died  Wednesday  evening,  September  21,  1842. 
His  head  had  just  been  lifted  up  ;  he  looked  upon 
his  friends  with  a  placid  smile,  which  seemed  like  a 
parting  benediction,  and  went  away  so  quietly  that 
no  one  knew  when  he  ceased  to  breathe. 


LIFE    OF    JUDGE    SMITH.  515 

"  Well  over  is  a  good  thing,"  was  the  last  comment 
signed  by  his  initials  in  his  common-place  book,  and 
it  might  have  been  inscribed  upon  his  tomb.  Having 
finished  his  active  duties,  he  had  retired  from  the 
world,  to  live  for  a  time  in  the  affections,  in  the  know- 
ledge gained  through  his  long  experience,  in  his 
serene  temper,  and  the  heart-felt  experience  of  the 
divine  goodness.  Before  these  resources  had  begun 
to  fail,  he  was  called  away.  Calm  and  peaceful  was 
the  going  down  of  his  autumnal  sun,  and  when  it 
was  set,  rich  and  golden  memories  lingered  round  its 
path.  There  is,  in  truth,  nothing  sad  in  the  beauti- 
ful and  fitting  close  of  a  life  so  filled  out  and  com- 
plete in  all  its  parts.  And  yet  how  many  are  the 
feelings  that  are  touched,  as  we  bid  farewell  to  one 
of  the  last  of  those  great  men,  who  laid  the  founda- 
tions of  our  government,  and  so  manfully  upheld  it 
in  the  first  days  of  its  peril.  May  there  never  be 
wanting  others  of  like  character  and  strength  to  stand 
by  it  in  every  hour  of  its  need  ! 

Judge  Smith's  aversion  to  show  he  carried  with 
him  through  life,  and  wished  it  to  be  avoided  in 
everything  connected  with  him  after  death.  Accord- 
ing to  his  request,  his  body  was  buried  in  a  space 
which  he  had  left  between  the  graves  of  Ariana  and 
her  mother.  On  a  plain  marble  head-stone,  "  neither 
better  nor  larger  "  than  those  which  he  had  procured 
for  them,  is  the  following  inscription,  prepared  by  his 
friends,  Daniel  Webster  and  George  Tick  nor  : 


516  LIFE    OF    JUDGE    SMITH. 

HERE    REST  THE  REMAINS  OF 

JEREMIAH     SMITH: 

IN    EARLY    YOUTH, 

A     VOLUNTEER     IN     THE     CAUSE     OF     THE     REVOLUTION, 
AND    WOUNDED    AT    THE    BATTLE    OF    BENNINGTONJ 

AFTERWARDS, 
A    REPRESENTATIVE    IN    CONGRESS    BY    THE    CHOICE    OF 

THE    PEOPLE    OF    NEW    HAMPSHIRE, 
AND  AN   ABLE    AND    EFFICIENT    SUPPORTER    OF    THE    MEASURES  OF 

WASHINGTON ; 

A    DISTRICT     ATTORNEY    OF    THE    UNITED     STATES,    AND 

JUDGE    OF    THE    CIRCUIT    COURT,    BY    THE 
APPOINTMENT    OF    WASHINGTON'S     SUCCESSOR  ; 

IN    YEARS    YET    MORE    MATURE, 
GOVERNOR       OF       NEW       HAMPSHIRE, 

AND 
TWICE    ITS    CHIEF   JUSTICE  : 

HE  WAS,  AT  EVERY  PERIOD  OF  HIS  LIFE,  WELL  DESERVING  OF  HIS 
COUNTRY  BY  HIS  COURAGE,  HIS  FIDELITY,  AND  HIS  DEVOTEDNESS  TO 
THE  PUBLICK  SERVICE  ;  EQUALLED  BY  FEW  IN  ORIGINAL  POWER,  PRAC- 
TICAL WISDOM,  AND  JUDICIAL  LEARNING  AND  ACUTENESS  ;  SURPASSED 
IN  THE  LOVE  OF  HONOR,  JUSTICE  AND  TRUTH,  BY  NONE. 

HE  WAS  BORN  AT  PETERBOROUGH,  NOVEMBER  29,  1759,  AND  LIVED 
IN  EXETER  FROM  1797  TILL  A  FEW  MONTHS  BEFORE  HIS  DEATH,  AT 
DOVER,  SEPTEMBER  21sT,  1842  ;  ALWAYS  MOST  LOVED  IN  THOSE  CIK- 
CLES  OF  DOMESTICK  AFFECTION  WHERE  HE  WAS  BEST  KNOWN,  AND 
ALWAYS  A  CHRISTIAN,  BOTH  BY  HIS  CONVICTIONS  AND  BY  THE  HABITS 
OF  A  LIFE  PROTRACTED,  IN  EXTRAORDINARY  CHEERFULNESS  AND  EN- 
ERGY, TO  ABOVE  FOUR  SCORE  AND  TWO  YEARS. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


jiv 


R  E  C  E  I  V  E  D 

MAIN  LOAN  DESK 


7|a|9tlOlllll2!l}2!3l415j.6 


NTERLIBRARY 
OCT291965 


irm  L9-50TO-4,'61(B8994s4)444 


E 

302.6 
S57M8 


